Manatee County wins cell tower case

MANATEE COUNTY — Residents of River Club, or neighboring communities, may not have great cell phone reception, but they can be assured they have been heard.

On June 19, Judge Elizabeth Kovachevich, of the U.S. District Court Middle District of Florida, Tampa Division, ended a five-and-a-half year battle by Vertex Development LLC over rights to develop a 150-foot camouflaged cellular communications tower on a parcel at the River Club Golf Course, siding with Manatee County on its decision to deny the application. 

The decision supports Manatee County in its December 2009 rezone denial and also paves the way for the county to use public testimony over community aesthetics, property values and other factors as rationale for denying a particular application.

“I think it’s a good outcome because it allows the county to have greater clarity for tower applications coming forward in the community,” said Chief Assistant County Attorney Robert Eschenfelder, who handled the case. “We can tell the board (of county commissioners) with confidence what kind of public (input) can lawfully be considered by the board members when ruling upon cell tower applications and non-cell tower land-use (items).”

Historically, county attorneys have advised commissioners they cannot use aesthetics, home values or other “not in my backyard” arguments as reasons to deny a development application; however, Kovachevich’s ruling specifics that detailed resident testimony can be used. For example, Kovachevich’s references testimony objecting to the site’s proximity to Braden River elementary and middle schools and an e-mail from Alex Troise stating, “When I purchased my home in 2007, I purposely selected a location in which the aesthetics of the surrounding area would remain constant. 

“Generalized aesthetic concerns do not justify the denial of a permit…However, aesthetic concerns may be a valid basis for denial if substantial evidence of the visual impact of the tower is before the board,” she wrote.

Vertex has about 30 days to file a notice of appeal. Its attorney, Mary Solik, of Orlando, declined to speak on behalf of her client, and Vertex representative Alan Ruiz did not return calls by press time Tuesday.

Judge Kovachevich had sided with the county in an order issued in January 2011, but Vertex asked for reconsideration on the basis that she used an updated version of the county code, not what was in place at the time of application, as part of her decision. It also argued the court based its opinion on alleged health risks, not included in the county’s written decision, and on the alleged impact to property values.

Contact Pam Eubanks at [email protected].