The city of Lakeland, Florida, is facing two federal lawsuits for two separately denied cell towers.
The first lawsuit, filed by North American Towers LLC in December of 2020, pertains to the tower that was proposed for 1055 Ariana St. and denied by the City Commission in November after being approved by the Planning and Zoning Board. The second lawsuit was filed by 1 Source Towers LLC in May for the denial of a cell tower at 1800 Harden Blvd. The tower was shut down by the Planning and Zoning Board in January, a decision that was upheld by the commission in April after the applicant appealed.
Both lawsuits allege the city violated the Federal Telecommunications Act of 1996 in its denials. The city is represented in both cases by Assistant City Attorney Jerrod Simpson.
Controversial Dixieland Tower
In December, the Lakeland City Commission denied a request from developer Gary Brundage to build a cell tower at 1055 Ariana St. near Dixieland on a 3-2 vote. Though the cell tower’s proposed location was not within the historic district’s boundaries, it was still hotly contested by local residents.
Now, plaintiff North American Towers has sued the city for improperly denying the request to rezone the 10.9 acres in question, which would have paved the way for a conditional use request and the construction of a 150-foot monopole tower.
Neither Brundage or North American Towers returned a request for comment. Additionally, Mary Doty Solik, who is representing NAT in the lawsuit, declined to comment on behalf of her client.
NAT alleges that the city’s denial of the tower was not supported by “competent, substantial evidence” and has requested summary judgment and a mandatory injunction to approve the tower. Lakeland in turn has requested summary judgment in favor of the city, claiming that all the court must find is that the city has evidence to support its reasons for denial, even if the court would have come to a different conclusion after reviewing the same facts the City Commission did.
“The citizen testimony, in its entirety, lacks sufficient factual content to support a finding that the Proposed Tower will have an undue adverse effect upon any nearby property and cannot support a denial,” the plaintiff said, according to filed court documents. “What is clear from the record is that the Commission denied the rezoning and conditional use application, based on the generalized statements of objections from a handful of residents. However sincere the objections of the neighbors may have been, the Board must base its decision on substantial evidence, not public sentiment.”
The city of Lakeland argued in its reply that citizen testimony was relevant and has been held up as evidence in prior, similar cases. It also quoted documents and photographs that citizens presented during the public comment period as evidence as to the effect the cell tower would have on local residents’ lives.
“In this case, it is clear that the neighbors are the most qualified individuals to testify regarding compatibility with the neighborhood in which they live and experience every single day,” the city said. “North American Towers is essentially asking this court to invalidate the concerns of the citizens who live next door to where this proposed cell tower would go.”
According to filed documents, the city denied the rezoning of the property in question and subsequently the request for the cell tower because of aesthetics and a preference to retain the property’s multi-family land use designation over limited development. The city also cited the proposed tower’s proximity to Lake Hunter and historic neighborhoods.
Chris Satterfield, who owns the “pink house” previously owned and occupied by historic figure Henry Plant, was one of the residents who argued against the cell tower before Lakeland’s government officials. He told The Ledger on Tuesday he would prefer to see apartments spring up than a cell tower, as long as it benefited the community.
Teresa Maio, Lakeland’s community planning and housing manager, confirmed Tuesday that the property’s current zoning would entitle an owner or developer to 12 units per acre. While there was some speculation in the court documents as to whether wetlands on the property would limit the total amount of developable acres, Maio said the developer could produce taller buildings to hit maximum capacity, which would equal about 130 total residential units.
Furthermore, Maio said the placement of a cell tower in the center of the lot — its proposed location — would limit available development. The city decided to prioritize residential development potential.
The plaintiff has argued that the city should have considered the property’s downzoning and the conditional use request separately, rather than as a package deal. The plaintiff also argued that downzoning the property to limited development and leaving it as a heavily wooded area would preserve the “status quo,” which the city said is what was done when it preserved multifamily zoning.
“Because the commission did not debate the correct question there is no competent substantial evidence to support its denial and the decision cannot stand,” the plaintiff argued.
Simpson, on behalf of the city of Lakeland, disagreed.
“The City Commissioners were not required to debate the merits of an LD zoning request in a vacuum, and somehow separate the rezoning of the Property from the underlying purpose of the request,” the city said.
The plaintiff also argued that as long as the cell tower proposal fit with the city’s comprehensive plan, it should be approved. But the city argued that a finding of incompatibility with adjacent sites — which was found because of surrounding residential uses — is inherently a finding of incompatibility with the comprehensive plan.
The court assigned mediation to the two parties, which failed in April. Simpson said the two parties are now waiting on a decision from the judge, as both parties filed for summary judgment, or an order for oral arguments. The last response was filed by the city on June 4.
City staff had recommended approval of the controversial Dixieland tower, a fact cited by the plaintiff. But Simpson said that doesn’t matter, as the City Commission gets the final say over planning and zoning matters.
“It’s the City Commission’s decision to make and our office is obligated to defend the decision of the commission,” Simpson said. “We followed all of our procedures and I’m very confident in that.”
The tower is still opposed by the residents who organized against it, and they are closely following the lawsuit’s outcome.
“It’s not about providing service for the community,” Satterfield said. “It’s about providing profits on an investment property that was purchased for the sole reason of putting up a cell tower.”
Harden Boulevard Tower
The second lawsuit, filed by 1 Source Towers, argues that the city’s denial of a cell tower at 1800 Harden Blvd. will keep Verizon from solving a “significant gap in its coverage,” triggering something called “effective prohibition.”
The LLC is being represented by attorney Mattaniah Jahn, who also presented the tower to Lakeland’s Planning and Zoning Board and City Commission. Jahn did not return a request for comment.
The board denied the tower because it would have necessitated a significant adjustment to the city’s setback requirements and would have ended up too close to nearby residential neighborhoods, reinvigorating the issue of compatibility; the commission agreed.
But Jahn and the lawsuit argue that the denial resulted in “effective prohibition.” The lawsuit says Verizon has a 3.71-square-mile gap in coverage around the proposed tower site and had exhausted 14 other sites that were either unavailable, didn’t have enough space, were too far away to solve the gap in coverage or didn’t meet Lakeland’s setback requirements.
“Neither Staff nor the Planning and Zoning Board addressed 1 SOURCE’s contention that denial of 1 SOURCE’s Tower would effectively prohibit Verizon from solving a significant gap in its service,” the plaintiff said in its filing.
The lawsuit also alleges that the decision to deny the tower was based on potential adverse health effects of RF emissions, which is not allowed via federal law, because emissions were discussed by commissioners.
Simpson said the city will file its response by the end of the week.
Maya Lora can be reached with tips or questions at [email protected] Follow her on Twitter @mayaklora.