Pi Telecom Infrastructure, LLC v. City of Jacksonville

104 F.Supp.3d 1321

PI TELECOM INFRASTRUCTURE, LLC, Plaintiff,

v.CITY OF JACKSONVILLE, FL, Defendant.

Case No. 3:14–cv–838–J–32MCR.

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

Signed May 8, 2015.

Gary K. Hunter, Henry French Brown, Mohammad O. Jazil, Hopping, Green & Sams, PA, Tallahassee, FL, for Plaintiff.

Jason R. Teal, City of Jacksonville, Jacksonville, FL, for Defendant.

ORDER

TIMOTHY J. CORRIGAN, District Judge.

Plaintiff PI Telecom Infrastructure, LLC challenges Defendant City of Jacksonville, Florida's denial of its application to construct a wireless communications facility (more commonly known as a cell tower) as violative of the Federal Telecommunications Act of 1996 (the “Act”), 47 U.S.C. § 151 et seq.The record here is fixed, and the facts are not substantially in dispute. The parties have fully briefed cross-motions for summary judgment. The Court heard oral argument on April 22, 2015, the record of which is incorporated herein. (SeeDoc. 23.)

I. BACKGROUND

PI Telecom sites, constructs, and operates cell towers for telecommunications carriers in Florida. (Compl. ¶ 1, Doc. 1.) PI Telecom has proposed constructing a 150–foot camouflaged unipole¹cell tower at a location in the San Marco neighborhood of Jacksonville, Florida approximately 150 feet north of River Oaks Road, in a railroad right-of-way owned by Florida East Coast Railway, roughly between Fieldston Lane and Summerall Avenue (“the proposed site”). (PC REC_0004, 67.²) The site is marked by a circle at the center of the satellite map below:³

(PC REC_0075.) The proposed site is zoned Industrial Light, with a Light Industrial land use category. (PC REC_0004.) A Jacksonville Electric Authority facility is immediately east of the proposed site. (PC REC_0006.) Immediately north of that, and north-northeast of the proposed site, is Jackson Square, a presently-undeveloped, mixed-use commercial and multi-family residential Planned Unit Development (“PUD”).⁴(PC REC_0005–6.) Further to the east is a commercial corridor along Philips Highway. (SeePC REC_0005.) On the south side of River Oaks Road from the proposed site, along the east side of the railroad tracks, is additional property zoned Industrial Light. (PC REC_0006.) Approximately 145 feet west of the proposed site is Alexandria Oaks Park, a large, open recreational space with a line of mature trees along its boundary with the right-of-way. (PC REC_0005–6.) Residences line each of the other three sides of the park and spread out into the neighborhood from there. (Id.)

A. The Jacksonville Tower Ordinance

On April 1, 2014, PI Telecom submitted its application to build the tower with the Jacksonville Planning and Development Department (“Department”). (PC REC_ 0067.) Sections 656.1501–.1517 of the Jacksonville Ordinance Code (the “Tower Ordinance”) set out the applicable regulations for the location, design, and operation of cell towers within the City. The stated goals of the regulations include “[p]rotecting the natural features and aesthetic character of the City ... with special attention to residential neighborhoods, public parks, transportation view corridors, historic districts, historic landmarks, and environmentally sensitive lands” and “[m]inimizing the adverse visual and aesthetic impact” of cell towers while “accommodating the growing demand for wireless communication services ....” Jacksonville Ordinance Code (“JOC”) § 656.1501(b)-(c). To ensure that these purposes are not frustrated, the City employs a three-part application review process.

Any telecommunications company wishing to construct a new cell tower must submit an application to the City. JOC § 656.1504. Initially, a Planning Coordinator reviews the application for completeness. Id.If complete, the application is forwarded to the Department, which prepares a staff report recommending denial, approval, or approval with conditions. In the case of “Track II Towers” such as the one proposed by PI Telecom,⁵the Planning Commission (the “Commission”) must hold a public hearing and make a final determination on the application. JOC § 656.1506(d). The Commission is the ultimate decision-maker on tower applications. JOC § 656.1506(e).

Section 656.1506 on Track II Towers reads in pertinent part:

(a) Application and review.Applications to construct a camouflaged tower not satisfying the criteria set forth in Section 656.1505, Ordinance Code, or low impact/stealth tower shall be assigned for processing on a “Track II” schedule. Within 15 days of notification from the Coordinator that the application is complete, a Track II application shall be scheduled for review at the next regularly scheduled meeting of the Commission. The Commission shall approve, deny, or conditionally approve the application where it finds that the proposed tower (1) complies with the tower siting and design standards and performance standards of this Subpart; and (2) is compatible with the existing contiguous uses or zoning and compatible with the general character and aesthetics of the surrounding neighborhood or area, considering (a) the design and height of the wireless communication tower; and (b) the potential adverse impact upon any environmentally sensitive lands, historic districts or historic landmarks, public parks or transportation view corridors.

(b) Camouflaged towers; Siting and Design Requirements.Except as set forth in Section 656.1514, Ordinance Code, Track II camouflaged towers shall be permitted in all zoning districts, including Planned Unit Development Districts, and shall meet the compatibility requirements set forth in subsection (a) above and shall be subject to the following siting and design requirements:

(1) Height.Track II camouflaged towers shall not be subject to a maximum height requirement, so long as the proposed tower is architecturally and aesthetically compatible with the surrounding community.

(2) Setbacks.Regardless of the zoning district in which a camouflaged tower is proposed to be constructed, the tower shall be set back a distance of at least 100 percent of the tower height from the nearest residential lot line of any single family residence or single family residentially-zoned property, including residential PUD districts and properties with a single-family residential component in a mixed-use PUD district, or AGR IV land use category; provided, however, that this setback shall not be required where legal title to the nearest residential parcel is held by the owner of the tower site. In the event that the proposed tower is to be located within a mixed use Planned Unit Development (PUD), the minimum distance set forth herein shall be measured from the nearest residential development. Camouflaged towers shall also be set back a minimum distance of 50 feet from any transportation view corridor or environmentally sensitive lands; provided, however, that the set back from the transportation view corridor shall not apply where the camouflaged tower is designed to resemble a utility or light pole.

(3) Collocation.Any camouflaged tower in excess of 100 feet in height shall be designed to accommodate antennas for at least two separate wireless communication service providers.

JOC § 656.1506(a)-(b).

Thus, pursuant to section 656.1506, a successful Track II application requires the satisfaction of two criteria, one objective (compliance with siting, design and performance standards) and one subjective (compatibility with existing contiguous uses and zoning and with the general character and aesthetics of the surrounding neighborhood or area). JOC § 656.1506(a). In making its subjective determination regarding compatibility, the Commission is instructed to consider both the design and height of the proposed tower and the potential adverse impact upon areas like historic districts and parks. Id.If both the objective and subjective elements are satisfied, the Commission “shall approve” the application. Id.If not, the Commission is vested with the authority to either conditionally approve or deny the application. Id.

B. PI Telecom's Application

Among other things, PI Telecom's application packet included statements describing the proposed site and the need of carrier AT & T Mobility, Inc. for a tower at that location, coverage maps for before and after installation of the proposed tower, maps of the “search ring,” the satellite map reproduced above, and a series of photo simulations of the proposed tower from the selected locations near the proposed site marked on the above satellite map. (PC REC_0071–72, 75–89.)

The letter of need from AT & T explains that it requested PI Telecom build a tower at the proposed site to remedy the area of in-building coverage weakness depicted as the largest area in yellow in the coverage map below:

(PC REC_0085; seePC REC_0072, PC REC_0017 at 114.) AT & T's radio frequency (“RF”) system design engineer identified this area after reviewing coverage in Jacksonville, analyzing existing antenna sites, conducting site visits, and performing computer modeling of coverage. (PC REC_0072.) Based on this analysis, AT & T concluded that “the existing coverage levels do not adequately support the usage demands of AT & T customers in this area, in terms of placing calls and using advanced data devices such as smartphones, tablets [,] etc.” (Id.)

AT & T used its analysis to develop a zone, or “search ring,” within which a tower would need to be located to meet AT & T's coverage objective of “improv[ing] coverage/capacity to homes, businesses and the surrounding area that currently has weak or no service conditions” and “provid[ing] 4G LTE Gold level wireless services and features” in the area. (PC REC_0071–72.) The center of the search ring represents the best location for a tower in terms of coverage, which in this case actually falls within Alexandria Oaks Park. (PC REC_0088; seePC REC_0030 at 168.) But the search ring here allows PI Telecom to place a tower anywhere within a 0.252–mile radius from the center...