HEX Final Decision 2023-13Page 1 of 3
NO. 2023-13
HEARING EXAMINER DECISION
DATE OF HEARING.
March 23, 2023
APPEAL PETITION.
Petition No. ADA-PL20230000354 - Appeal filed by Mitchell and Melanie Penne of the
Administrative Approval of Site Development Plan SDP-PL20210002791 requested by
applicant AT&T Mobility & City Switch, LLC, which authorized the development of a 250-
foot telecommunication tower within the Rural Agricultural (A) Zoning District. The subject
property is located at 1160 Kapok Street in section 15, township 49 south, range 27 east,
Collier County, Florida. (Mike Bosi, Director Planning & Zoning) District 5.
GENERAL PURPOSE FOR THE APPEAL PETITION.
An appeal filed by Mitchell and Melanie Penner (“Appellants”) of the administrative approvals of
Site Development Plan (SDP) Petition SDP-PL20210002791 and regarding the approval of a 250-
foot telecommunication tower within the Rural Agricultural Zoning District located at 1160 Kapok
Street.
STAFF RECOMMENDATION.
Staff recommends that the Collier County Hearing Examiner deny the appeal based upon the
documentation provided to satisfy the requirements of Section 5.05.09 of the Collier County Land
Development Code (LDC).
GENERAL FINDINGS.
1. The public hearing for this Petition was properly noticed and conducted in accordance with all
County and state requirements.
2. The Appeal Petition was timely filed.
3. The public hearing was conducted electronically and in-person in accordance with
Emergency/Executive Order 2020-04.
4. The County’s LDC Section 8.10.00 and Ordinance 2013-25, as amended gives the Hearing
Examiner the authority to hear an Administrative Type III Appeal.
5. Pursuant to Sec. 2-87 of the County’s code of ordinances (“Powers and duties of the Hearing
Examiner”), in deciding on the appeal, “the Hearing Examiner must consider a) The criteria
for the type of application being requested, b) Testimony from the applicant, and c) Testimony
from any members of the public.
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6. County LDC Section 5.05.09 codifies the review and approval criteria for “Communications
Towers.”
7. Attorney Zachary Lombardo represented the Appellants, attorney Jeff Wright represented
AT&T Mobility & City Switch, LLC, and planning director Michael Bosi represented the
County at the appeal hearing. All parties and the public were given sufficient time to
participate.
ANALYSIS.
1. Section 2-1163 of the County’s code of ordinances defines an aggrieved or adversely affected
party “as any person or group of persons which will suffer an adverse effect to an interest
protected or furthered by the Collier County Growth Management Plan, Land Development
Code, or building code(s). The alleged adverse interest may be shared in common with other
members of the community at large but shall exceed in degree the general interest in
community good shared by all persons.” (Emphasis added). The private parties to this appeal
dispute standing. The ”purpose and intent” of LDC Section 5.05.09 states “[t]his section sets
standards for construction and facilities siting; and is intended to minimize, where applicable,
adverse visual impacts of towers and antennas through careful design, siting, and vegetation
screening; to avoid potential damage to adjacent properties from tower failure; to maximize
the use of specified new communication towers and, thereby, to minimize the need to construct
new towers; to maximize the shared use of specified tower sites to minimize the need for
additional tower sites; to lessen impacts new ground mounted towers could have on migratory
and other species of birds; to prevent unnecessary habitat fragmentation and/or disturbance
in siting and designing new towers; and to consider the concerns of the Collier Mosquito
Control District as to low flying mosquito control aircraft safety.” (Emphasis added). Many
of the interests cited in this section apply to adjacent properties. Appellants own property and
live near enough to the proposed communication tower to benefit from LDC Section 5.05.09.
Therefore, as to this specific appeal, Appellants have standing.
2. The gravamen of Appellants’ argument is whether the applicant supplied, and the County
considered proof to satisfy certain criteria in LDC Section 5.05.09.D (“Shared use of towers”)
and 5.05.09.E (“Shared use of tower sites”), which apply to communication towers with a
height in excess of 185 feet above natural grade. The proposed communication tower will be
250 feet tall. After a careful review of the LDC criteria, the record, including all exhibits listed
in the County’s staff report, documents supplied as part of this appeal, and all documents and
testimony from the hearing, the County’s decision that the applicant met the review criteria is
supported. The record sufficiently demonstrates why the new service cannot use existing
towers and tower sites within the applicable service radius area. New documentation was
presented at the hearing to which County planning director Bosi testified “… only further
confirms our opinion.” The applicant supplied the requisite proof to satisfy LDC Section
5.05.09. The County’s approval of the communication tower is upheld.
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DECISION.
For the reasons expressed above, the Hearing Examiner hereby DENIES Appeal Petition Number
ADA-PL20230000354, filed by Zachary Lombardo, Esq. representing Mitchell and Melanie
Penner and AFFIRMS the approval of SDP-PL20210002791.
APPEALS.
This decision becomes effective on the date it is rendered. An appeal of this decision shall be done
in accordance with applicable ordinances, codes and law.
RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES
AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR
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NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES.
________________________ ____________________________________
Date Andrew Dickman, Esq., AICP
Hearing Examiner