Judge sides with county in River Club tower dispute

RIVER CLUB — After more than a year of deliberation, a U.S district judge has sided with Manatee County in a dispute between it and Vertex Development over the construction of a telecommunications tower in the River Club community.

U.S. District Judge Elizabeth A. Kovachevich on Jan. 3 ruled Manatee County had showed “substantial evidence,” as required by law, to deny Vertex’s application to construct a 150-foot flagpole style cell tower just north of the River Club Golf Course’s parking lot.

In her 41-page opinion, Kovachevich explained that factors such as community aesthetics and character, property values and other concerns raised by residents could be valid reasons for denial of the tower and said the county’s decision did not violate the Telecommunications Act of 1996, as Vertex argued.

“As previously cited, the Eleventh Circuit has held that aesthetic objections coupled with evidence of an adverse impact on property values or safety concerns can constitute substantial evidence,” Kovachevich wrote. “The court finds that the aesthetic objections to the cell tower, coupled with evidence of the negative impact of the proposed cell tower on property values, constitute a substantial evidence within the written record to support the (board of county commissioners’) denial of Plaintiff’s application.”

Deputy County Attorney Rob Eschenfelder said he was not surprised by the court’s finding and noted the judge clearly had reviewed parts of the record the county had used to defend its board’s decision. Although the judgment did not “break any new ground,” he said its level of detail would provide insight for future cases.

“I think if anything, Judge Kovachevich’s (decision) is significant in that it is one of the most lengthy opinions out there that focuses on that issue — what are the parameters a decision maker are allowed to consider in terms of property value and aesthetics.

“I think her opinion is a road map for what other communities can follow for what is legally significant in those kind of proceedings,” he said. “(The judgment) makes it clear the residents and any opponents really have to focus their testimony and exhibits on that specific site.”

Vertex’s attorney Lauralee Westine said only that her client is exploring what its next step may be.
“We are considering all our options at this time,” she said.

Vertex has 30 days from the date of judgment to file an appeal, if it so chooses.

Contact Pam Eubanks at [email protected].

MOVING FORWARD
A county hearing officer currently is reviewing a similar application for a cell tower in the Palm-Aire community. Deputy County Attorney Robert Eschenfelder said the decision for River Club would not have a direct impact on the case because the decision did not “break any new ground,” but it may prove to be educational for the hearing officer.