Vertex files suit against Manatee County

RIVER CLUB — After being denied the right to build a 150-foot, flagpole-style telecommunications tower on River Club Golf Course property, Vertex Development is fighting back.

The company filed a lawsuit Dec. 31 against Manatee County in the U.S. District Court for the Middle District of Florida. Vertex is seeking a declaratory judgment that denial of the project violates the Federal Telecommunication Act of 1996 and is asking for a mandatory injunction, ordering the county to approve the application as submitted.

“Vertex did file the appeal of the board’s decision, and we will be pursuing it diligently,” said Lauralee Westine, the attorney who represented Vertex during the county hearings.

The Manatee County attorney’s office became aware of the suit earlier this month, although the county was not served with the complaint until Jan. 15.

Deputy County Attorney Robert Eschenfelder said he is confident the county will be able to successfully defend its decision.

“The bottom line is (Vertex) allege(s) the county commissioners did not have substantial evidence in the record to make the decision they made,” Eschenfelder said. “It is our opinion that the commissioners had substantial evidence in the record to make the decision they made. It’s our intension to strongly defend (them).”

Manatee County commissioners denied Vertex’s application for a cell tower in a 6-1 vote Dec. 3, saying they were not convinced it met county regulations or could be considered an auxiliary use to the golf course as county planning staff suggested. Commissioner Joe McClash, who led the motion for denial, also said the project was incompatible with existing development and the intent of River Club’s original developers for the community to be “planned as a whole.”

River Club residents who attended the meeting agreed and also suggested Vertex would have to amend River Club’s development of regional impact rather than seeking an amendment to allow the tower as a conditional use.

Vertex’s lawsuit, however, states the company’s application met and exceeded county code requirements and proved there was a need for the facility. Its application even garnered the support of county planning staff for approval.

The company’s lawsuit also states commissioners “engaged in little or no debate or discussion of the merits of the application” weighed against the county’s land development code and citizens who spoke against the project did not articulate any fact-based testimony to support a denial.

Eschenfelder said evidence supporting and opposing the tower both were presented in detail — a fact that is favorable to the county.

“The Telecommunications Act does not require the approval of the tower if the evidence falls on both sides,” Eschenfelder said. “It becomes a policy decision for officials to make.”

Eschenfelder could not guess when the case would be resolved, but noted the Telecommunications Act of 1996 calls for an expedited review of these types of lawsuits. He said he would expect the federal court would have made its initial review of the record by the summer.

T-Mobile, which would be the anchor tenant for Vertex’s tower, has been looking for a suitable tower site in the River Club area since 2005.

REVISED CELL TOWER ORDINANCE
The Manatee County Planning Department is working on a revised ordinance to address telecommunication towers in more detail. The first public hearing on the issue was held Jan. 7 and a second, final public hearing is slated for Feb. 23.

The new cell-tower ordinance brings the county’s land development codes in alignment with changes in Florida statutes and also clarifies a preference toward commercial and industrial sites for proposed towers.
Individuals can view a draft of the proposed ordinance county’s Web site, www.mymanatee.org, under the “Headlines” section.

Contact Pam Eubanks at [email protected].