North American Towers LLC v. City of Lakeland

NORTH AMERICAN TOWERS LLC, Plaintiff, v. CITY OF LAKELAND, Defendant.

No. 8:20-cv-3006-VMC-AAS

United States District Court, M.D. Florida, Tampa Division

July 13, 2021

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court upon consideration of Plaintiff North American Towers LLC's Motion for Summary Judgment (Doc. # 23) and Defendant City of Lakeland's Motion for Summary Judgment (Doc. # 24), both filed on April 30, 2021. The parties responded to each Motion on May 21, 2021. (Doc ## 25; 26). The parties replied to each Motion on June 4 2021. (Doc. ## 27; 28). For the reasons below, North American's Motion is denied and the City's Motion is granted.

I. Background

North American services “various licensed personal wireless telecommunications providers by locating, leasing, zoning, constructing, and owning personal wireless service facilities.” (Doc. # 1 at ¶ 5; Doc. # 10 at ¶ 5). North American sought to construct a 150-foot telecommunications tower on a 10.9-acre plot of land located within the City's limits that it leased from Samuel and Stacy Houghton. (Doc. # 22-1 at 2; Doc. # 22-7; Doc. # 22-8; Doc. # 22-11 at 6). The Houghton property is “a heavily wooded, low lying tract of land that functions as part of the natural drainage basin for Lake Hunter.” (Doc. # 22-11 at 28; Doc. # 22-16 at 3:20-22). The Houghton property's boundaries sit within 500 feet of Lake Hunter. (Doc. # 22-11 at 5). The proposed cell tower would be located “in the center of [the property, approximately] 370[ feet] from the north property line, 330[ feet] from the east property line, 300[ feet] from the south property line, and 331[ feet] from the west property line.” (Doc. # 23 at ¶ 17; Doc. # 22-11 at 9; Doc. # 22-2).

On February 9, 2018, North American applied to the City to construct the cell tower on the Houghton property. (Doc. # 22-11 at 8). When the application was filed, the Houghton property was zoned Multi-Family District (“MF-12”) with a future land use designation of Residential Medium. (Id.); City of Lakeland Land Dev. Code § 2.2.1 (2018). The City's Land Development Code explains that multi-family districts are intended “to provide for single-family attached and multi-family residential development at a variety of densities which are consistent with the existing and desirable future pattern of development in the city. . . . The use restrictions protect multi-family residential development from the encroachment of incompatible land uses.” Id. at § 2.2.3.3(a). The Code further provides that cell towers may only be built on MF-12 zoned property when the property “contain[s] a non-residential land use such as a golf course, parking lot, cemetery, church, school, electric utility substation[, ] or [the property is] a vacant parcel of 50 acres or more.” Id. at § 5.18.5.1(h).

Because the Houghton property did not meet either of the Code's conditions to erect a cell tower on MF-12 zoned property, North American applied to rezone it to Limited Development (“LD”). (Doc. # 22-11 at 8). The LD zoning classification “provides for rural, agricultural, conservation and recreation land uses where appropriate and where consistent with the existing and desirable future pattern of development.” City of Lakeland Land Dev. Code § 2.2.3.8. Cell towers may be constructed on LD-zoned property located within 2, 000 feet of a covered lake as a conditional use. (Doc. # 22-11 at 9); City of Lakeland Land Dev. Code § 5.18.5.6 (“Conditional use consideration shall be required for any ground-mounted PWS facility proposed to be located within 2, 000 feet of the water line and within public view of the shores of the following lakes: Lake Beulah, Lake Bonnet, Lake Bonny, Lake Crago, Lake Gibson, Lake Hollingsworth, Lake Holloway, Lake Hunter, Lake Mirror, Lake Morton, Lake Parker and Lake Wire.”).

To be approved for a rezoning and conditional use, the petitioner must submit an application with the City, which is first reviewed by the City's staff. City of Lakeland Land Dev. Code § 12.5.4. The City's staff in turn presents a recommendation to the City's Planning and Zoning Board, which conducts a public hearing. Id. at § 12.6.1. Upon the Board's approval, the City Attorney's Office drafts the appropriate ordinances and provides them to the City Commission. Id. at § 12.6.1.3. The City Commission must consider the applications “at two separate meetings, the second of which shall be a public hearing.” Id. at § 12.6.2.

Upon review, both the City's staff and the Planning and Zoning Board recommended approval of North American's rezoning and conditional use applications. (Doc. # 22-11 at 11-2). The City Attorney's Office then drafted two separate ordinances rezoning the Houghton property to LD and allowing the conditional use of the proposed cell tower. (Doc. # 22-11 at 2-25). On November 16, 2021, the City Commission held its public hearing on the adoption of both ordinances. (Doc. # 22-12; Doc. # 22-16).

At the hearing, Teresa Maio, an employee of the City's Community and Economic Development Department, provided background on the Houghton property. (Doc. # 22-16 at 3:16-5:2). Maio explained that the property was previously “part of the [H]istoric [D]istrict.” (Id. at 4:5-6). However, in 2016, the City Commission decided to rezone the Houghton property to MF-12 because “of [its] noncontributing status as [a] historic structure[]” and “in an effort to incentivize or make it more attractive for developers to come in and potentially develop multi-family on these properties.” (Id. at 4:7-14). Maio then described the size of the property, its proximity to other homes, and the scale of the proposed structure. (Id. at 4:21-5:25). Maio presented the Commission with photo simulations of the cell tower from various perspectives, noting it would “certainly be visible above the tree canopy, but the tree canopy does serve to significantly reduce the overall height of the tower.” (Id. at 6:23-7:6).

The below map shows the proposed cell tower at the center of the Houghton property, with Lake Hunter to the northeast:

(Image Omitted)

(Doc. # 22-12 at 10). The below representative photo simulations, which constitute four of seven submitted by North American, show the cell tower would rise above the tree canopy and would be visible from several vantage points:

(Image Omitted)

(Image Omitted)

(Id. at 11-17).

The Commissioners then asked Maio questions about the proposed ordinances and raised some concerns. Commissioner Madden inquired about the property's current zoning, whether it would be desirable to build housing on the property, and whether allowing this cell tower would “eclipse any future land change . . . back to multi-family.” (Doc. # 22-16 at 12:23-13:2, 15:1-3). Commissioner Walker echoed this concern about potential future multi-family development. (Id. at 19:20-20:4). Maio responded that she had not yet received any inquiries about developing the land into multi-family housing, and that rezoning the property to LD and placing a cell tower in the middle of it would limit development of the property in the future. (Id. at 13:23-25, 15:4-13). Maio explained:

So I'm not sure how someone would configure a multi-family development of a significant size on this property given that this tower is sitting right in the middle. And having to deal with things such as stormwater and parking and building arrangements. To say it's impossible, I wouldn't say that. It would just be, I think, unlikely because you have the reduction in the developable area of this property.

(Id. at 20:9-17).

Thereafter, North American presented its proposal to the Commission and the Commissioners invited comments from attendees. (Id. at 21:15-26:19). One attendee opposing the ordinances noted that he lived at the Magnolia Pointe Condominiums located immediately to the east of the Houghton property and described his neighbors and the proximity of the proposed cell tower to their homes. (Id. at 26:22-29:25).

Another attendee highlighted the proximity of the Houghton property to Lake Hunter, the aesthetics and visibility of the cell tower from the surrounding areas, and people's willingness to develop multi-family properties near the cell tower. (Id. at 31:6-33:11 (“And like I said earlier, we're Lakeland and we should be taking pride in our lake. And we're going to give up a piece of lake front property. . . . We're not giving up prime real estate for multi-family, where families could go, you know, hopefully someone will develop that, build homes and families could walk over to Lake Hunter and enjoy the lake and the wildlife and boating and everything else that goes along with living in Lakeland.”). Yet another attendee opposing the ordinances referred to the cell tower's “proximity to our homes, the risk of property value loss, neighborhood aesthetics and most importantly implied health concerns.” (Id. at 40:1-41:16). A number other attendees noted health concerns as well. (Id. at 30:6-12, 48:3-4, 48:19-49:11, 50:8-10).

Following these comments, Commissioner Walker moved to approve the ordinances. (Id. at 52:1-4). The City Attorney then warned the Commissioners that they could not consider health concerns arising from the cell tower's frequency due to federal preemption. (Id. at 52:15-53:25). The City Attorney advised the Commissioners that they could consider “aesthetics, compatibility, and property values.” (Id. at 52:25-53:6). The Commissioners then discussed their views on the ordinances. Commissioner McCarley stated that she would not support the cell tower due to the issues raised by the attendees - specifically citing to property values. (Id. at 58:15-20). Commissioner McLeod noted his belief that “this [is not] the best use for this...