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HEX Final Decision 2021-10 HEX NO. 2021-10 HEARING EXAMINER DECISION DATE OF HEARING. February 11, 2021 PETITION. PETITION NO. VA-PL20190002701 — CitySwitch II-A, LLC request two variances from LDC Section 5.05.09(G)(7)(b),to reduce the eastern boundary setback of 125 feet to 60.5 feet and from the western boundary setback of 125 feet to 82.2 feet for a proposed 250 foot communications tower on a parcel in the east%of the northwest'/4 of the southwest VI of the northeast 1/4 of the northwest % of Section 15, Township 49 South, Range 27 East, Collier County, Florida. GENERAL PURPOSE FOR THE PETITION. The proposed tower is 250' tall,the separation requirement would be 125' (a greater distance than the tower's certified collapse area). The petitioner is requesting a reduction from the eastern and western boundary setbacks to situate a proposed communication tower. STAFF RECOMMENDATION. Approval with conditions. FINDINGS. 1. The Hearing Examiner has jurisdiction over this Petitioner pursuant to Sec. 2-87(2) of the Collier County of Ordinances, Sec. 8.10.00 of the Land Development Code, and Chapter 9 of the County Administrative Code. 2. The public hearing for this Petition was properly noticed and conducted in accordance with all County and state requirements. The Petition heard after several continuances, in part for the Petition to meet with neighbors and their representative(s). 3. The public hearing was conducted electronically and in-person in accordance with Emergency/Executive Order 2020-04. 4. The Petitioner and/or Petitioner's representative executed the Hybrid Virtual Quasi-Judicial Public Hearing Waiver related to conducting the public hearing electronically and in-person. 5. The Petitioner and/or Petitioner's representative presented the Petition, followed by County planning staff and then public comment. Petitioner was afforded time for rebuttal. The property owner is Johannes Steffens and the applicant is CitySwitch II-A, LLC. The owner also owns the undeveloped land abutting the subject properties' southern property line. Page 1 of 7 6. Petitioner was presented by attorney Jeff Wright of the law firm Henderson, Franklin, Starnes &Holt,P.A. Mr.Wright made legal arguments and introduced Jim Alderman with JJ Wireless Consultants LLC, as an expert in wireless communication, cellular tower construction and operation, and land acquisition for cellular towers. He also testified to a federal communications initiative known as "FirstNet" which is designed for enhanced wireless communication for first responders (firefighters, law enforcement, etc.). 7. There were several interested parties opposed to the application who presented legal arguments and provided expert testimony and factual lay person testimony. a. Attorney Doug Lewis of the law firm of Thompson and Lewis appeared on behalf of the J. Richard Smith Revocable Family Trust,Arnette Smith and Davis Sherf,who own the large parcel directly east of the subject property. Mrs. Arnette Smith appeared personally as owner of the abutting property to express her objections and perceived negative impacts to the use of the single-family home on said property, which is used in part for vacation/transient rental. a. Attorney Lewis made legal arguments and presented two experts, Ralf Brookes, Esq. and Thomas Barber, AICP. Mr. Brooks, a board-certified city county and local government attorney, gave expert testimony pertaining to the application of the general law of variances. Thomas Barber, AICP, who is the planning director for Agnoli Barber & Brundage, Inc., gave expert testimony to the application of the county's variance criteria related to the subject property. b. Mitchell Penner appeared on behalf of Frangipani Agriculture Community Civic Association with fact-based objections to the Petition. c. Melanie Penner residing at 1235 Sugarberry Street, Naples, FL, also appeared with fact- based objections. 8. The County's LDC Section 9.04.03 lists the criteria for evaluating a variance application: "Before any variance shall be recommended for approval [the Hearing Examiner] shall consider and be guided by the following standards in making a determination:"1 a. Are there special conditions and circumstances existing,which are peculiar to the location, size and characteristics of the land, structure or building involved? The subject parcel is a rectangle shape and the 250' tower, pursuant to the county LDC Sec. 5.05.09(G)(7)9b), requires a 125'separation from all property boundaries. The height of the tower and its antennas dictates the separation requirement. The separation must be the greater of one-half the height of the tower and its antennas or the "certified collapse area. " Based on the evidence and testimony, the greater distance is half the height of the The Hearing Examiner's findings are italicized. Page 2 of 7 proposed tower. Thus, when centering the tower on the subject parcel, the east and west property lines are less than 125'away—approximately 82'on each side. b. Are there special conditions and circumstances, which do not result from the action of the applicant such as pre-existing conditions relative to the property, which are the subject of the Variance request? The applicant has selected this particular rectangular-shaped property for a 250'wireless tower, which triggered the need for the two variances. The applicant, not the property, selected the height of the tower. The property was the same size and shape before the applicant selected it for the tower. c. Will a literal interpretation of the provisions of this zoning code,work unnecessary and undue hardship on the applicant or create practical difficulties for the applicant? The applicant specifically requests a 250' tower, which is impossible to permit on this parcel without the two variances, due to a literal application of the separation requirement in the county's LDC. d. Will the Variance, if granted, be the minimum Variance that will make possible the reasonable use of the land, building or structure and which promote standards of health, safety and welfare? But for the use and size of the tower in the application, a variance might be unnecessary. A shorter tower might be permissible without the two variances. Other uses might be permissible without the two variances. The applicant's expert testified that the tower must be at the height requested for the FirstNet wireless service. The county's planning experts write in their staff report that approval of the application "would not have a negative impact on standards of health, safety, and welfare of the abutting parcels. " (Emphasis added). e. Will granting the Variance confer on the applicant any special privilege that is denied by these zoning regulations to other lands,buildings,or structures in the same zoning district? County planning staff's report and presentation make clear the applicant is seeking a deviation from the established minimum setbacks for a wireless cellular tower of a height that cannot meet said setbacks, and "Other properties facing a similar hardship would be entitled to make a similar request and would be conferred equal consideration on a case- by-case basis. " f. Will granting the Variance be in harmony with the general intent and purpose of this Land Development Code, and not be injurious to the neighborhood, or otherwise detrimental to the public welfare? The applicant is seeking two deviations (variances)from the plain language of the intent and purpose of the LDC pertaining to locating cellular towers (distance from property lines and fall radius). The purpose of this distance or fall radius is to protect abutting Page 3 of 7 property. County planning staff testified the opposite in its staff report, i.e., that the variances would be in harmony with the LDC. The opposition testified that the variances will not be in harmony with the LDC purpose and intent. g. Are there natural conditions or physically induced conditions that ameliorate the goals and objectives of the regulation such as natural preserves, lakes, golf courses, etc.? The applicant's expert relies on the necessity to locate an essential public services communication tower on this property to meet this criterion. No evidence or testimony was presented that "natural conditions or physically induced conditions"on the property that create the necessity of the variances. The county planning staff report defers to the applicant's answer to this criterion. h. Will granting the Variance be consistent with the GMP? County planning experts testes that the variance is consistent with the Growth Management Plan. ANALYSIS. LDC Sec. 9.04.03 requires that the Hearing Examiner shall"consider and be guided"by the above referenced criteria. Therefore, the Hearing Officer must,not may, consider and be guided by the criteria. However, the phrase "guide and consider" is not the same as "must meet all or some of the criteria." "Guide" is defined as "something that provides a person with guiding information"and"consider"is defined as"to take into account." Merriam-Webster Unabridged. Logically, the Hearing Examiner may consider or be guided by additional relevant factors and law. A variance is relief granted from the literal enforcement of a zoning ordinance permitting the use of property in a manner otherwise forbidden when it is found that the enforcement of the ordinance as written would inflict practical difficulty or unnecessary hardships on the property owner. Mayflower Property, Inc. v. City of Fort Lauderdale, 137 So. 2d 849 (Fla. Dist. Ct. App. 2d Dist. 1962). It is true that each petition or application for a zoning variance must be judged on its own merits and is not controlled by prior variances nor sets a precedent for future variances. City of Jacksonville v. Tylor, 721 So. 2d 1212 (Fla lst DCA, 1998). "Florida courts have held that a legal hardship will be found to exist only in those cases where the property is virtually unusable or incapable of yielding a reasonable return when used pursuant to the applicable zoning regulations." Herrera v. City of Miami, 600 So. 2d 562 (Fla. 3d DCA 1992), review denied; Bernard v. Town Council of Palm Beach, 569 So. 2d 853 (Fla. 4th DCA 1990); see also Miami-Dade County v. Brennan, 802 So. 2d 1154, 1155 n. 2 (Fla. 3d DCA 2001) (Fletcher, J., concurring). Page 4 of 7 In seeking a variance on the grounds of hardship, a property owner cannot assert the benefit of a self-created hardship. Clarke v. Morgan, 327 So. 2d 769 (Fla. 1975). Thus, a property owner who purchased property with knowledge of the zoning restriction may not claim a variance on the ground of hardship. Crossroads Lounge, Inc. v. City of Miami, 195 So. 2d 232 (Fla. Dist. Ct. App. 3d Dist. 1967). Economic disadvantage alone does not constitute sufficient hardship to warrant the granting of a variance. Metropolitan Dade County v. Reineng Corp., 399 So. 2d 379 (Fla. Dist. Ct. App. 3d Dist. 1981). Hardship necessary to obtain a variance may not be found unless there is a showing that under the existing zoning no reasonable use can be made of the property. Thompson v. Planning Com'n of City of Jacksonville,464 So. 2d 1231 (Fla. Dist. Ct. App. 1st Dist. 1985). To grant a variance, there must be a showing of exceptional hardship to the individual landowner, unique to the landowner's parcel and not shared by other property owners in that area. Town of Indialantic v. Nance, 485 So. 2d 1318 (Fla. Dist. Ct. App. 5th Dist. 1986). As a practical note the irregular shape or other peculiar physical characteristics of a parcel of land may constitute hardship justifying the granting of a variance. City of Coral Gables v. Geary, 383 So. 2d 1127 (Fla. Dist. Ct. App. 3d Dist. 1980). It appears the LDC criteria applicable here does, for the most part, align with the plethora of cases pertaining to the law of variances. A core feature is "hardship" — meaning a physical characteristic of one property is different from other similarly situated properties under the same zoning requirements, that the one property is virtually unusable (for the permitted uses allowed as of right). In other words, a literal application of the code would render a hardship on the property owner. Clearly the primary focus must be on the property and less so on the particular use (among the list of uses permitted as of right) the property owner/applicant wants. There is no evidence in the record that the property is irregular, substandard or has natural constraints on the property that rise to the level of a hardship. The maps provided by county staff illustrate parcels of all sizes in the vicinity, though admittedly this parcel (and the abutting parcel on the west side) are smaller rectangle parcels. Although not specifically in the record, nothing suggests that a wireless cellular tower is the only permitted use for the property in this zoning district. The record does reflect that the owner/applicant/contract purchaser selected this parcel to locate the requested wireless cellular tower. The reasoning for selecting this parcel, according to the applicant's expert, is the area is deficient for the FirstNet telecommunication system. While the applicant's representatives spoke with county first responders (Fire Chief Kingman Schuldt and Emergency Management Director, Dan Summers), their direct testimony, letter, or affidavit would be more helpful understanding the reason why the subject parcel is among the only or few available in an area lacking FirstNet. While the emphasis at the hearing was the necessity for FirstNet driving the selection of the subject parcel and the height of the tower, a letter from Maiko Llanes at AT&T Mobility, dated January 6, 2021, addressed to "Collier County"was submitted. That letter asserts that it has"an existing and ongoing need for a new facility in the vicinity of the proposed [applicant's]tower... to improve coverage, capacity and service experience for our customs in the vicinity." Maps Page 5 of 7 and testimony were presented addressing the retail wireless coverage —maps showing a gap in coverage and testimony showed that coverage is sufficient. Therefore, based on the record, it is hard to conclude a hardship exists specific to the parcel because it is the only available parcel within the area required by the FirstNet program and the size of the tower must be 250'. Nothing in the record illustrates that the 250' FirstNet tower is the only permitted use allowed on the property. In fact, the record shows a shorter tower could be placed on the property without variances. All parties and their respective representatives made sound arguments and offered useful written and verbal testimony. However, in deciding these two variances, using the established LDC criteria and case law, without more information in the record, it is simply impossible to approve the variances on this parcel. Based on a review of the record including the Petition, application, exhibits, the County's staff report, and hearing comments and testimony from the Petitioner and/or the Petitioner's representative(s),County staff and the public,the Hearing Examiner finds that there is not enough competent, substantial evidence as applied to the criteria set forth in Section 9.04.03 A. through H. of the Land Development Code to approve the Petition. DECISION. The Hearing Examiner hereby DENIES Petition Number VA-PL20190002701, filed by Kendal Lotze of Ignite Wireless, Jim Alderman of J&J Wireless Consultants LLC and Jeff Wright, Esq. representing the owner Johannes Steffens and the applicant CitySwitch II-A,LLC,with respect to the property described as East V2 of the Northwest '/4 of the Southwest 'A of the Northeast '/4 of the Northwest 1/4 of Section 15, Township 49 South, Range 27 East, Collier County, Florida, for the following: • Two variances from the Collier County Land Development Code (LDC) Section 5.05.09(G)(7)(b), to reduce the eastern boundary setback of 125 feet to 60.5 feet and from the western boundary setback of 125 feet to 82.2 feet for a proposed 250-foot communications tower. APPEALS. This decision becomes effective on the date it is rendered. Pursuant to Ordinance 2013-25, as amended, a Hearing Examiner Decision may be appealed to the Board of County Commissioners or the Board of Zoning Appeals, as appropriate. Appeals must be filed within 30 days of the date the Hearing Examiner Decision is rendered. Page 6 of 7 RECORD OF PROCEEDINGS AND EXHIBITS: SEE CLERK OF COURT, MINUTES AND RECORDS DEPARTMENT. DECISIONS OF THE HEARING EXAMINER FOR VARIANCES, CONDITIONAL USES, AND BOAT DOCK EXTENSIONS SHALL BE NOTED ON THE ZONING MAP FOR INFORMATIONAL PURPOSES. /.22.--(,_—.--,--'— March 9, 2021 Date Andrew Dickman, Esq., AICP Hearing Examiner Page 7 of 7