Vertex Development, LLC v. Pinellas County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

VERTEX DEVELOPMENT,

LLC,

Plaintiff,

v. Case No. 8:22-cv-2012-VMC-CPT

PINELLAS COUNTY,

FLORIDA,

Defendant.

____________________________/

ORDER

This matter comes before the Court upon consideration of

Plaintiff Vertex Development, LLC’s Motion for Summary

Judgment (Doc. # 18) and Defendant Pinellas County, Florida’s

Motion for Summary Judgment (Doc. # 19), both filed on January

9, 2023. The parties responded to each Motion on January 30,

2023. (Doc. ## 20; 21). For the reasons that follow, Vertex’s

Motion is granted, and Pinellas County’s Motion is denied.

I. Background

A. The Proposed Tower and Vertex’s Application

Vertex Development, LLC, is a limited liability company

with a principal place of business in Tampa, Florida. (Doc.

# 5 at 1). According to Vertex, it provides services to

various licensed personal wireless telecommunications

providers by locating, leasing, zoning, constructing, and

owning personal wireless service facilities. (Id. at ¶ 6).

Vertex seeks to build a 120-foot camouflaged

telecommunications tower (the “Proposed Tower”) on a parcel

of land owned by Christ the King Lutheran Church, Inc. (the

“Church Property”). (Administrative Record (“AR”) Doc. # 17-

1 at 3–5, 12–13). The Church Property, which is located at

11220 Oakhurst Road, Largo, Florida, is zoned R-2 under the

Pinellas County Land Development Code (the “LDC”) and

contains approximately 6.748 acres. (Id. at 3–4, 33). The

Church Property is bordered by single family residences to

the immediate north, south, and west. (Id. at 39). These

residences are also zoned R-2. (Id.). Thus, the contiguous

uses surrounding the church property are predominately

single-family residential. The compound containing the

Proposed Tower is located in the southwest corner of the

Church Property. (Id.). The parties dispute whether the

southwest corner abuts 8 or 12 single-family residential

properties. (Doc. # 19 at ¶ 12; Doc. # 20 at ¶ 12).

Under LDC Section 138-3313(c)(1)(b), camouflaged

telecommunication towers are a permitted use at a maximum

height of 75 feet in the R-2 zoning district. LDC § 138-

3313(c)(1)(b). LDC Section 138-3313(c)(9) provides that

proposed communications towers may seek flexibility to the

height standards, subject to Type 2 Use Approval. Id. § 138-

3313(c)(9). In accordance with this section, on June 21, 2022,

Vertex applied to the Board for a Type 2 Use Approval to allow

it to construct a 120-foot-tall wireless telecommunications

tower and supporting equipment. (AR Doc. # 17-1 at 10).

The camouflage technique proposed is a monocross, which

is a tower designed to resemble a cross. (Id. at 32–33). The

Proposed Tower would accommodate antenna equipment owned and

operated by Verizon Wireless as the anchor tenant, as well as

antenna equipment owned and operated by three future tenants.

(Id. at 13). The Proposed Tower’s setbacks from the Church

Property lines are 319 feet 11 inches from the north, 501

feet 1 inch from the east, and 122 feet from both the south

and west. (Id. at 39). The setbacks from the residential

property are the same, except the setback to the east for

residential property is 584 feet 4 inches. (Id.). The Proposed

Tower is between 148 and 195 feet from the corners of the six

nearest single-family residences. The Proposed Tower meets

the required setbacks from abutting residential property

lines. LDC § 138-3313(c)(2).

LDC Section 138-3313(c)(7)(a) requires towers to be

enclosed by security fencing a minimum of six feet in height.

LDC § 138-3313(c)(7)(a). The Proposed Tower compound includes

an 8-foot-tall PVC security fence and is designed to have a

46-foot fall zone radius. (AR Doc. # 17-1 at 36, 40). The

outer edges of the fall zone radius are 76 feet from the

adjacent residential property lines to the immediate west and

south. (Id. at 38, 39).

The southwest corner of the Church Property contains

several mature trees along the western boundary line and

several within the proposed Vertex lease area and compound.

(Id. at 36). The plans for the Proposed Tower compound include

an eight-foot-tall fence around the 240-foot perimeter, as

well as a five-foot-wide landscaped buffer. (Id. at 40). The

planned five-foot-wide landscaped buffer consists of six 12-

foot-tall, 2.5-inch diameter slash pine trees, six 12-foot-

tall, 2.5-inch diameter laurel oak trees, and a 30-inch-tall

hedge of Ligustrum shrubs. (Id. at 44). However, the plans

for the Proposed Tower compound require the removal of three

mature trees from the leased parcel, including a 14-inch

diameter oak tree, a 13-inch diameter oak tree, and a 12-inch

diameter maple tree. (Id. at 44).

B. Denial of the Application

On August 3, 2022, the Pinellas County Board of

Adjustment and Appeals (the “Board”) conducted a public

hearing where it heard Vertex’s application. (Id. at 112). In

preparation for the hearing, the Pinellas County Zoning Staff

reviewed Vertex’s application and determined the application

met all the criteria for granting a Type 2 use. (Id. at 53–

54, 117). Accordingly, the Zoning Staff recommended approval.

(Id. at 54). In doing so, the Zoning Staff stated in writing

that the recommendation of conditional approval was not a

final decision on the matter, and that the Board would make

the final decision following the public hearing. (Id. at 53).

At the hearing, Vertex presented as the applicant,

sixteen citizens testified in opposition, and representatives

of Vertex testified in support. (Id. at 117–18). The

testifying citizens raised several concerns, including but

not limited to the aesthetic impact of the tower, the

potential negative impact on home values, the number of

existing antennas near the proposed site, the plans to remove

trees, and safety concerns related to the tower falling.

(Hearing Transcript, Doc. # 17-5 at 10:18–24, 8:24–9:3,

11:11–16, 12:10–11, 17:18–19).

With respect to the aesthetic impact of the tower,

resident Lori Miller expressed concern about the sight lines

from her residence to the location of the Proposed Tower.

(Id. at 8:12–22). Residents Barb Mears, Matthew Calavac,

Crystal Cheryl, and Larry Krueger expressed their concern

with the general aesthetic impact of the tower. (Id. at 10:18–

24, 13:14–17, 15:20–16:3, 33:20–34:2). Several residents

emphasized the inconsistency of the tower with the

residential neighborhood. (Id. at 8:19–22, 15:25–16:3, 20:15–

22, 24:15–19, 28:2–7). In addition, fourteen citizens

submitted written comments prior to the hearing, three of

which expressed concerns over the Proposed Tower’s aesthetic

impact. (AR Doc. # 17-1 at 91, 105, 107). Of those three

concerns, two writers described the Proposed Tower as an

“eyesore,” and one opined that it would “destroy the

aesthetics” of the residential area. (Id.).

At the public hearing, the residents also expressed

concerns with the potential impact of the tower on property

values. (Hearing Transcript, Doc. # 17-5 at 8:24–9:3, 10:20–

22, 18:15–21, 20:2–6, 21:23–24:3). One resident stated she

discussed the issue with a “real estate man,” who relayed

that the tower would reduce the pool of people interested in

her house. (Id. at 18:16–18). Another resident cited studies

from the U.S. Department of Housing and Urban Development and

the National Association of Realtors concerning the impact of

cell towers on property values. (Id. at 20:3–11). In an email

to the Board prior to the public hearing, one resident cited

an article in the Journal of Real Estate Finance and

Economics. (AR Doc. # 17-1 at 97–98).

During the Board’s deliberation, Board Member Bomstein

indicated the importance of considering the aesthetics of

placing the proposed tower “within a very dense residential

neighborhood.” (Hearing Transcript, Doc. # 17-5 at 47:1–3).

Board Member Gephart commented on the difference between a

75-foot tower and the proposed 120-foot tower, emphasizing

the aesthetic impact of the additional height. (Id. at 54:3–

8).

Board Member Bomstein thereafter introduced a motion to

deny Vertex’s request due to a lack of evidence that the

Proposed Tower met the Type 2 use criteria of LDC Section

138-241(b), which governs the separation of the proposed used

from adjacent and nearby uses by screening devices, buffer

areas, or other appropriate means. (Id. at 54:23–55:9).

The Board ultimately denied Vertex’s application on a 4-

1 vote. (AR Doc. # 17-1 at 119). Thereafter, on August 10,

2022, Pinellas County issued its written order denying the

application for the Proposed Tower. (Id. at 1). The written

order provided:

Please be advised that by action of the

Pinellas County Board of Adjustment and

Appeals on August 3, 2022, your request for a

Type 2 use to allow construction of a 120-

foot-tall, camouflaged communication tower

and related support facilities, for the R-2

zoned property located at 11220 Oakhurst Road

in unincorporated Largo is denied based upon

the Board’s determination that the proposed

increase in height for the communication tower

creates a negative aesthetic impact on the

surrounding properties and the criteria for

granting a Type 2 use in Section 138-241(b) of

the Pinellas County Land Development Code was

not supported by substantial evidence

presented at the hearing.

(Id.).

Vertex initiated this action on August 31, 2022. (Doc.

# 1). Vertex filed its amended complaint on September 14,

2022. (Doc. # 5). The amended complaint asserts the following

claims against Pinellas County: declaratory relief (Count I),

and injunctive relief (Count II). (Id. at 7–8). Vertex seeks

“an order declaring the County’s denial of Vertex’s

Application for a 120’ Camouflaged Tower null and void” and

“a mandatory injunction [instructing] the County to approve

Vertex’s Application as submitted[.]” (Id.).

Pinellas County filed its answer on September 26, 2022.

(Doc. # 6). Thereafter, the parties agreed that resolution of

the case would be determined by the closed record of Pinellas

County’s proceedings concerning Vertex’s Type 2 use

application. (Doc. # 12 at 2-3). Accordingly, the parties did

not engage in any additional discovery. (Id.; Doc. # 13).

Now, the parties both seek entry of summary judgment in their

favor. (Doc. ## 18; 19). The Motions have been briefed (Doc.

## 20; 21) and are ripe for review).

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593–94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

Finally, the filing of cross-motions for summary

judgment does not give rise to any presumption that no genuine

issues of material fact exist. Rather, “[c]ross-motions must

be considered separately, as each movant bears the burden of

establishing that no genuine issue of material fact exists

and that it is entitled to judgment as a matter of law.” Shaw

Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538-

39 (5th Cir. 2004); see also United States v. Oakley, 744

F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary

judgment will not, in themselves, warrant the court in

granting summary judgment unless one of the parties is

entitled to judgment as a matter of law on facts that are not

genuinely disputed[.]” (citation omitted)).

III. Analysis

Both parties have filed Motions for Summary Judgment

(Doc. ## 18; 19). The Court will begin by addressing Vertex’s

Motion, followed by Pinellas County’s Motion.

A. Vertex’s Motion for Summary Judgment

“Congress enacted the [Federal Telecommunications Act of

1996] to ‘promote competition and higher quality in American

telecommunications services and to encourage the rapid

deployment of new telecommunications technologies.’” PI

Telecom Infrastructure v. City of Jacksonville, 104 F. Supp.

3d 1321, 1336 (M.D. Fla. 2015) (quoting Michael Linet, Inc.

v. Vill. of Wellington, 408 F.3d 757, 761 (11th Cir. 2005)).

The Act “generally preserves ‘the traditional authority of

state and local governments to regulate the location,

construction, and modification’ of wireless communications

facilities like cell phone towers, but imposes ‘specific

limitations’ on that authority.” T-Mobile S., LLC v. Roswell,

574 U.S. 293, 300 (2015) (quoting Rancho Palos Verdes v.

Abrams, 544 U.S. 113, 115 (2005)). Relevant here, the Act

requires that “[a]ny decision by a State or local government

or instrumentality thereof to deny a request to place,

construct, or modify personal wireless service facilities

shall be in writing and supported by substantial evidence

contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii)

(2020). “[P]arties adversely affected by a locality’s

decision [to deny such a request] may seek judicial review.”

T-Mobile, 574 U.S. at 300.

In this respect, “substantial evidence is ‘more than a

mere scintilla but less than a preponderance.’” PI Telecom,

104 F. Supp. 3d at 1341 (citation omitted). “[T]o determine

whether a locality’s denial was supported by substantial

evidence, . . . courts must be able to identify the reason or

reasons why the locality denied the application.” T-Mobile,

574 U.S. at 300. “[T]hese reasons need not be elaborate or

even sophisticated, but . . . simply clear enough to enable

judicial review.” Id. at 302. Courts “should view the record

in its entirety, including evidence unfavorable to the state

or local government’s decision.” Preferred Sites, LLC v.

Troup Cnty., 296 F.3d 1210, 1218 (11th Cir. 2002).

“[R]eview of a local government’s decision to deny a

cell tower application is colored by the requirements of the

local zoning ordinance.” Wireless Towers, LLC v. City of

Jacksonville, 712 F. Supp. 2d 1294, 1303 (M.D. Fla. 2010). As

relevant here, LDC Section 138-241 sets forth the following

determinations to be made by the reviewing body:

(a) The proposed use is consistent with

the Pinellas County Comprehensive Plan

and with the purpose and intent of the

applicable zoning district.

(b) There is adequate separation of the

proposed use and related structures

from adjacent and nearby uses by

screening devices, buffer area, and/or

other appropriate means.

(c) Adequate drives, walkways, and parking

are available or proposed so that no

vehicular circulation or parking

problems are created.

(d) The proposed use will not create

excessive vehicular traffic or other

traffic problems.

(e) Drainage problems will not be created

on the subject property or nearby

properties.

(f) All provisions and requirements of the

applicable zoning district will be

met, unless otherwise varied by the

authorized reviewing body as

authorized by this Code.

LDC § 138-241.

Additionally, “[t]he party seeking to overturn the

governing body’s decision bears the burden of showing that

the decision is not supported by substantial evidence.” PI

Telecom, 104 F. Supp. 3d at 1342 (citing Am. Tower LP v. City

of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002)). And

while the statute requires the decision on the permit

application be “in writing,” that writing need not be reduced

to a “single writing that itself contains all of the grounds

and explanations for the decision.” T-Mobile South, LLC, v.

City of Milton, Ga., 728 F.3d 1274, 1285 (11th Cir. 2013).

Rather, “it is sufficient if the [reasons for the decision]

are contained in a different written document or documents

that the applicant is given or has access to.” Id. In that

vein, reviewing courts should consider “[a]ll of the written

documents . . . collectively.” Id.

The crux of Vertex’s argument is that the denial of its

application for the Proposed Tower was improper because the

citizen testimony presented in opposition relied on

generalized aesthetic concerns, without relying on any

objective criteria. (Doc. # 18 at 16–17). Pinellas County’s

position is that the evidence of the Proposed Tower’s

inadequate separation from the adjacent residential

neighborhood as well as the negative aesthetic impact

constitutes substantial evidence. (Doc. # 19 at 19).

As explained in its letter denying Vertex’s application,

the Board based its decision on (1) evidence of an inadequate

separation of the proposed tower and tower compound from the

adjacent residential properties used as single-family

dwellings by screening devices, buffer area or other

appropriate means and (2) the negative aesthetic impact on

the surrounding properties. (AR Doc. # 17-1 at 1). These

reasons reflect the concerns highlighted at the public

hearing, which centered on three general themes: the

potential aesthetic impact of the Proposed Tower; the

separation between the Proposed Tower and the adjacent

residential neighborhood; and the incompatibility between the

Proposed Tower and the neighborhood and the resulting impact

on property values. (Hearing Transcript, Doc. # 17-5 at 15:20–

21, 55:3–54:2, 10:17–24). The Court will address each of these

concerns in turn.

1. The Aesthetic Impact of the Proposed Tower

Several of the residents’ concerns at the public hearing

focused on the potential aesthetic impact of the Proposed

Tower on the adjacent residential neighborhood. (Hearing

Transcript, Doc. # 17-5 at 10:18–24, 13:14–17, 15:20–16:3,

33:20–34:2). “Aesthetic concerns may be a valid basis for

denial of a permit if substantial evidence of the visual

impact of the tower is before the board. Mere generalized

concerns regarding aesthetics, however, are insufficient to

create substantial evidence justifying the denial of a permit

under § 704(a) of the TCA.” Preferred Sites, LLC v. Troup

Cnty., 296 F.3d 1210, 1219 (11th Cir. 2002) (emphasis in

original) (internal citations omitted). In other words,

“aesthetic concerns can be a valid basis for denial of a

permit by a local governing body, so long as a judgment based

on those concerns is supported by objective facts or

evidence.” Verizon Wireless Pers. Commc’ns LP v. City of

Jacksonville, Fla., 670 F. Supp. 2d 1330, 1341 (M.D. Fla.

2009) (emphasis in original).

Courts have found actual evidence of an aesthetic visual

impact where opponents of the tower have demonstrated the

extent of its visibility through photo simulations or a

balloon test. See, e.g., Wireless Towers, 712 F. Supp. 2d at

1304 (finding aesthetic concerns a sufficient basis to deny

an application to construct a tower where photo simulations

demonstrated the tower’s visual obtrusiveness). For example,

in Wireless Towers, the court found objective evidence of

aesthetic concerns where the local governing body reviewed

photo simulations depicting selected views of the proposed

tower from the areas surrounding the parcel upon which it

would be built. Id. There, the application to build the tower

contained photo simulations which depicted the tower’s rise

above the tree line and its visibility to residents in the

adjacent subdivision. Id. at 1298. At the public hearing,

Plaintiff’s expert presented the photo simulations, going

through each simulation individually. Id. at 1299. The court

thus upheld the city’s denial of the application permit,

reasoning that the photo simulations provided objective

evidence of the proposed tower’s aesthetic incompatibility

with the surrounding area. Id. at 1304. Notably, the

surrounding area was deemed to be environmentally sensitive,

which was a salient consideration under the local zoning

ordinance. Id. at 1296. The court thus specifically

highlighted the tower’s incompatibility with an area

emphasized to be sensitive by the local code. Id. at 1304.

Likewise, in Southeast Towers, LLC v. Pickens County,

Georgia, 625 F. Supp. 2d 1293, 1303 (N.D. Ga. 2008), the court

found objective evidence of aesthetic impact where the tower

would impact “the unspoiled view of . . . a unique historical

resource that deserved special protection.” The visibility

effects of the tower were demonstrated through photographs

taken during a balloon test, which reflected the tower’s

visibility from various locations within the historic

district. Id. And in Vertex Development, LLC v. Manatee

County, 761 F. Supp. 2d 1348 (M.D. Fla. 2011), the court found

substantial evidence to support a denial where, in addition

to letters and emails from residents focusing on the specific

impact a proposed tower would have on a golf course, the

county considered a photo simulation of the tower.

Conversely, courts have reversed a denial of an

application where the local governing body merely relied on

“speculative concerns about [a] proposed tower’s potential

visibility.” Verizon Wireless, 670 F. Supp. 2d at 1342; see

Benjamina Nursery Farm, Inc. v. Miami-Dade Cnty., 170 F. Supp.

2d 1246, 1253 (S.D. Fla. 2001) (“Moreover, the neighbor

testimony, while sincere, was largely opinion based and,

therefore, lacked sufficient factual content to support the

Appeals Board’s decision.”); Gulfstream Towers, LLC v. Lake

Cnty., No. 5:20-cv-443-JSM-PRL, 2021 WL 2907718, at *6 (M.D.

Fla. May 7, 2021) (finding no substantial evidence where the

citizen testimony “did not offer any specific factual

testimony about how much of the Proposed Tower will be visible

from their homes or offer any other factual testimony about

the tower’s visual impact to the area.”).

For example, in Verizon Wireless, a letter of concern

expressing that a tower would “exist as a blight on the

surrounding environment” did not constitute objective

evidence of aesthetic impact where nothing in the record

indicated that the proposed tower would actually be within

the viewscape of a nearby nature preserve. Verizon Wireless,

670 F. Supp. 2d at 1343. In particular, the court focused on

the fact that the residents offered only their opinions on

the impact on the tower, without adducing objective evidence

to support a finding that the tower would adversely affect

the aesthetics of the surrounding area. Id.

Likewise, in Vertex Development, LLC v. Marion County,

No. 5:7-cv-380-WTH-GRJ, 2008 WL 2994259, at *15 (M.D. Fla.

Aug. 1, 2008), the court evaluated the denial of a permit

based on public testimony focused on the fact that the tower

would be an “eyesore” and ruin the beauty of the surrounding

areas. The court found such testimony did not rise to the

level of substantial evidence as it took the form of “purely

subjective concerns as opposed to articulated, fact based

reasons keyed to any of the objective requirements (or

limitations) of the County Code.” Id. Further, in response to

the public testimony concerning the proximity of the tower to

residential property lines, the court found that “proximity

concerns are specifically addressed by the [County] Code’s

established setback requirements,” which the Plaintiff

exceeded. Id. at *16.

Here, the record reflects that the resident opposition

to the Proposed Tower took the form of generalized grievances,

rather than objective, factual concerns keyed to the county

code. See Marion County, 2008 WL 2994259, at *15 (reversing

a denial of a permit where the aesthetic concerns were not

grounded in the objective requirements of the county code).

Of the fourteen written comments submitted prior to the public

hearing, only three mention aesthetics. (AR Doc. # 17-1 at

91, 105, 107). Of those three, two writers simply used the

word “eyesore” to describe the Proposed Tower. (Id. at 91,

105). The third expressed that the Proposed Tower would

“destroy the aesthetics” of the residential area. (Id. at

107). Similarly, at the public hearing, one resident

expressed her concern that she would be able to view the

Proposed Tower from the windows of her house. (Hearing

Transcript, Doc. # 17-5 at 18:12–22). Three residents cited

general aesthetic concerns in opposition to the Proposed

Tower. (Id. at 10:18–24, 13:14–17, 15:20–16:3). One resident

stated he was “a little worried” that shadows from the tower

would obstruct his view of the sunset. (Id. at 33:20–34:2).

This case is thus dissimilar from Wireless Towers and

Manatee County, where the local governing bodies considered

photo simulations demonstrating the extent of a proposed

tower’s visibility. See Wireless Towers, 712 F. Supp. 2d at

1303–04 (finding substantial evidence on which to base a

denial where photo simulations depicted the extent of the

proposed tower’s visual obtrusiveness); Manatee County, 761

F. Supp. 2d at 1364 (considering photo simulations to deny an

application for a tower). Here, in contrast, Pinellas County

did not identify any objective evidence it relied on to

support the residents’ concerns over the Proposed Tower’s

aesthetic impact. While some of the residents opined

generally that the tower would be an “eyesore,” these opinions

did not adduce any evidence on the extent of the Proposed

Tower’s visibility. (AR Doc. # 17-1 at 91, 105). Only one

resident stated that the Proposed Tower would actually be

visible from her residence. (Hearing Transcript, Doc. # 17-5

at 18:12–22). Another resident suggested the Proposed Tower

could affect his view of the sunset, but did not present any

objective evidence demonstrating the Proposed Tower was in

the viewscape of his residence. (Id. at 33:20–34:2). Unlike

in Southeast Towers, where the Proposed Tower was found to

threaten the view of a historical resource, as evinced through

photographs taken during a balloon test, the citizens’

concerns here are speculative and subjective. See Se. Towers,

LLC, 625 F. Supp. 2d at 1303 (finding a balloon test showed

objective evidence of an aesthetic impact).

Indeed, the residents’ concerns here are more like those

in Verizon Wireless and Marion County. See Verizon Wireless,

670 F. Supp. 2d at 1343 (finding no substantial evidence where

residents expressed aesthetic concerns without presenting

objective evidence); Marion County, 2008 WL 2994259, at *15

(finding no substantial evidence where the public testimony

presented was “nothing more than purely subjective

concerns”). Like in Verizon Wireless, the residents’ concerns

about the aesthetic impact of the Proposed Tower amount to

nothing more than opinion testimony. See Verizon Wireless,

670 F. Supp. 2d at 1343 (“[T]he opinions of the letter-writers

cannot support a finding that Verizon’s monopine will have an

adverse aesthetic impact on the surrounding area.”). The

residents did not present any objective evidence on the extent

to which the Proposed Tower would be visible, or the impact

it would have on the residential neighborhood. Rather, the

residents opined, in general terms, that the Proposed Tower

would be an “eyesore.” (AR Doc. # 17-1 at 91, 105). While the

Court does not doubt the sincerity of the residents’ concerns,

these generalized complaints are insufficient to rise to the

level of substantial evidence. See Marion County, 2008 WL

2994259, at *15 (finding concerns that a proposed tower would

be an “eyesore” purely subjective); Preferred Sites, LLC v.

Troup Cnty., 296 F.3d 1210, 1219 (11th Cir. 2002)

(“[G]eneralized concerns about aesthetics are insufficient to

constitute substantial evidence upon which the Board could

rely.”).

The cases cited by Pinellas County where courts upheld

the denial of an application to construct a cell tower on

aesthetic grounds are distinguishable from the case at bar.

First, Pinellas County cites North American Towers LLC v.

City of Lakeland, No. 8:20-cv-3006-VMC-AAS, 2021 WL 2941759

(M.D. Fla. July 13, 2021) — a decision by this Court — for

the proposition that visibility and proximity to residences

can constitute substantial evidence. (Doc. # 19 at 24). There,

this Court found substantial evidence to support a denial of

an application where evidence of the size of the property,

its proximity to residential uses, and the scale of the

structure were presented at a public hearing. N. Am. Towers,

2021 WL 2941759 at *5–6. However, the relevant local zoning

ordinance in North American Towers differed from the that

applicable to this case. See Wireless Towers, F. Supp. 2d at

1303 (noting that courts should review a denial with an eye

to the requirements of the local zoning ordinance).

Importantly, the ordinance in North American Towers provided

that the local governing body should consider factors

including “[t]he height and visual obtrusiveness of the

facility” and “[t]he degree of visibility from the public

view[.]” N. Am. Towers, 2021 WL 2941759, at *7 (citing City

of Lakeland Land Dev. Code § 5.18.7.c.). In contrast, the

Pinellas County LDC omits any reference to the visual

obtrusiveness of the facility or its degree of visibility.

See LDC § 138-241 (setting forth the factors for the County

to consider when evaluating applications for Type 2 uses).

Thus, that this Court upheld a denial in North American Towers

does not compel it to do the same here.

Similarly, Pinellas County cites Wireless Towers to

illustrate a court upholding a denial based on the governing

body’s subjective determination that the proposed tower was

incompatible with the surrounding area given the height and

design of the tower, and sensitivity of the affected land.

(Doc. # 19 at 24); see Wireless Towers, 712 F. Supp. 2d at

1304–05 (finding substantial evidence supporting a denial of

an application to build a tower). However, there, the

applicable local ordinance specifically directed the

Jacksonville Planning Commission to consider “the potential

adverse impact upon any environmentally sensitive lands[.]”

Id. at 1296 (citing Jacksonville Ordinance Code § 656.1506).

The court’s reasoning, whereby it found the tower to be

“incompatible with the surrounding area given its height,

design, and the sensitivity of the affected land” reflects

its consideration of the zoning ordinance. Id. at 1304.

In short, the aesthetic concerns relating to the

Proposed Tower at issue here are generalized and lacking in

factual support. While the Court appreciates the residents’

concerns about the impact of the Proposed Tower, like in

Verizon Wireless, these concerns reflect the residents’

opinions, rather than objective evidence on the extent of the

Proposed Tower’s visibility and its effect on the surrounding

area. See Verizon Wireless, 670 F. Supp. 3d at 1343 (finding

no substantial evidence where concerns over aesthetics

reflected opinions rather than objective facts). Such

generalized concerns do not constitute substantial evidence

on which the Board can properly base its denial of Vertex’s

application.

2. Adequate Separation

The second theme of the evidence in opposition to the

Proposed Tower reflects the residents’ view that there exists

inadequate separation between the Proposed Tower and the

adjacent residences. (Doc. # 19 at 26). According to Pinellas

County, its decision to deny Vertex’s application was

supported by evidence of the Proposed Tower’s close proximity

to residential properties and the minimal separation that the

proposed landscaped buffer would provide. (Doc. # 19 at 28–

29).

Under the LDC, it was appropriate for the Board to

consider the Proposed Tower’s proximity to the residential

area and its landscaped buffer in evaluating Vertex’s

application. In determining whether to grant an application

for a Type 2 use, the Board’s considerations include whether

“[t]here is adequate separation of the proposed use and

related structures from adjacent and nearby uses by screening

devices, buffer area, and/or other appropriate means.” LDC §

138-241.

However, courts have found proximity concerns

insufficient to support a denial of an application where the

proposed tower otherwise meets all the objective criteria set

forth in the local zoning code. For example, in Marion County,

the court found that the residents’ concerns that the tower

would be too close to their properties could not “constitute

substantial evidence because proximity concerns are

specifically addressed by the Code’s established setback

requirements,” which the Plaintiff had met. Marion County,

2002 WL 2994259, at *16. Likewise, in Verizon Wireless, the

court noted that the objective portion of the local code,

which dictated the setback requirements, precluded the city

from denying the application for the proposed tower based on

“proximity alone where the setback requirements have been

met[.]” Verizon Wireless, 670 F. Supp. 2d at 1343–44.

Similarly, a district court has found proximity

insufficient to support a denial even where the proposed tower

at issue would still be visible from a surrounding

neighborhood. See PI Telecom Infrastructure, LLC v. City of

Jacksonville, FL, 104 F. Supp. 3d 1321, 1344 (M.D. Fla. 2015)

(finding that subjective evidence concerning proximity and

aesthetics could not support a denial of an application but

upholding the denial on other grounds). There, the court

recognized that the proposed tower – which was to be 100 feet

from the southwest corner of a proposed mixed-

commercial/residential development – may obstruct the views

of some of the units. Id. However, because the Plaintiff had

met the applicable setback requirements, the court found the

proximity concerns alone insufficient to support the denial

of the application. Id.

Here, like in Marion County and Verizon Wireless, the

Proposed Tower fully complies with the setback requirements

set forth in LDC Section 138-3313(c)(1). Under Section 138-

3313(c)(2), “[n]ew towers shall be set back from abutting

residential property lines a distance equal to the height of

the tower.” LDC § 3313(c)(2). The Proposed Tower is set back

319 feet 11 inches from the north, 584 feet 4 inches from the

east, and 122 feet from both the south and the west. (AR Doc.

# 17-1 at 39). Because the Proposed Tower is 120 feet, it

fully complies with the LDC setback requirements.

The Court recognizes Pinellas County’s position that the

landscaped buffer will be insufficient to adequately separate

the Proposed Tower from the adjacent residential area.

However, as explained, any concerns about adequate separation

are addressed by the Proposed Tower’s compliance with the

setback requirements. See LDC § 3313(c)(2) (requiring new

towers to be set back from abutting residential property lines

a distance equal to the height of the tower). Indeed, LDC

Section 138-241 requires adequate separation of the Proposed

Tower from adjacent and nearby uses by “screening devices,

buffer area, and/or other appropriate means.” LDC § 138-241.

While a vegetative buffer may be sufficient to provide

adequate separation, the LDC does not indicate that it is

necessary. Here, the Proposed Tower’s compliance with the

LDC-prescribed setback requirements provides adequate

separation from the residential area. (Hearing Transcript,

Doc. # 17-5 at 41:20–42:3); see Cellular South Real Estate,

Inc. v. City of Mobile, Ala., 2016 WL 3746661, at *5 (S.D.

Ala. July 8, 2016) (finding that compliance with setback

requirements can effectively “buffer” a proposed tower from

nearby residences). Like in PI Telecom, “concerns about

proximity alone cannot support a finding of incompatibility

where the proposal meets the applicable setback

requirements.” PI Telecom, 104 F. Supp. 3d at 1344. While

Vertex makes no representation that the Proposed Tower will

not be visible, the proposal nevertheless complies with the

applicable code requirements. Thus, the Proposed Tower’s

proximity to the adjacent residential properties cannot

support the Board’s denial.

3. Incompatibility with Residential Neighborhood

and Property Values

The final theme of evidence presented in opposition to

the Proposed Tower is that the tower is incompatible with the

surrounding residential area and will thus depress property

values. (Hearing Transcript, Doc. # 17-5 at 10:17–24).

As an initial matter, the LDC permits camouflaged

telecommunications towers up to 75 feet tall in the R-2 zoning

district. LDC § 138-3313(c)(1)(b). Thus, any argument that

the Proposed Tower was per se incompatible with the

surrounding residential area is unavailing. As a matter of

policy, Pinellas County has determined that

telecommunications towers may coexist with a residential

neighborhood.

Given that towers of up to 75 feet in height may be

constructed in the relevant zoning area, the evidence in

opposition to the tower fails to home in on any detrimental

effects resulting from the increase in height. The residents’

concerns focused on the incompatibility of the Proposed Tower

with the neighborhood in general, rather than parsing out the

downsides of the increased height. For example, one resident

emphasized that “[t]his is a small residential area.”

(Hearing Transcript, Doc. # 17-5 at 24:17). Another stated

that the area “is not an appropriate location for a commercial

communication tower.” (Id. at 28:6 –7). Because these

concerns focus on the incompatibly of a tower with the

neighborhood as a general matter, rather than the

incompatibility of the Proposed Tower’s increased height, the

Court finds they are insufficient to rise to the level of

substantial evidence.

The same can be said for the evidence concerning property

values. First, any impact to property values is not an

articulated criterion for reviewing tower applications in

either LDC Section 138-3313 or the Type 2 standard set forth

in Section 138-241. Indeed, during the public hearing, County

Attorney Morris noted that the Proposed Tower “is a valid and

lawful use of the property. And property values of the

adjacent neighboring properties should not be considered.”

(Hearing Transcript, Doc. # 17-5 at 22:20–22).

Second, the evidence concerning property values

considered by the Board related only to the impact of erecting

a tower, not any increase in height. The majority of the

residents’ comments related to property values took the form

of general and layperson concerns. (Id. at 8:24–9:3, 10:20–

22, 18:15–21, 20:2–6, 21:23–24:3); compare Am. Tower LP v.

City of Huntsville, 295 F.3d 1203, 1208 (11th Cir. 2002)

(finding substantial evidence to support a denial where a

realtor with 16 years of experience testified that towers

make it harder to sell houses and that she had already lost

potential buyers). Of the 2 residents that indicated they had

reviewed the relevant research on the effect of property

values, neither presented evidence focusing on the negative

impact that the increase in height from 75 to 120 feet may

have. In sum, the Court’s review of the evidence does not

reveal any basis for the Board to find that an increase in

height, rather than merely building a tower of any height,

would depress property values.

In short, there was not substantial evidence in support

of the Board’s decision. Thus, Vertex is entitled to summary

judgment.

B. Pinellas County’s Motion for Summary Judgment

As the Court has already determined that summary

judgment in favor of Vertex is appropriate, the Court denies

Pinellas County’s Motion for Summary Judgment (Doc. # 19).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Pinellas County, Florida’s Motion for Summary

Judgment (Doc. # 19) is DENIED.

(2) Plaintiff Vertex Development, LLC’s Motion for Summary

Judgment (Doc. # 18) is GRANTED to the extent that the

County’s denial of Application TY2-22-11 is declared

a violation of 47 U.S.C. § 332(c). Defendant’s

Order denying the Type-2 Use Application

(TY2-22-11) is declared null and void.

(3) The Court reserves ruling on Plaintiff’s request for a

mandatory injunction pending efforts between the parties

to resolve this issue. The parties shall file a joint

status report within forty-five (45) days of this Order

concerning the status of their efforts.

(4) The Clerk shall administratively close the case pending

receipt of the parties’ joint report.

DONE and ORDERED in Chambers in Tampa, Florida, this 3rd

day of April, 2023.

that tn. Huwaby Couch.

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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