Magazine article Parks & Recreation

Law Review: Cell Towers Call Park Home

Magazine article Parks & Recreation

Law Review: Cell Towers Call Park Home

Article excerpt

A city doesn't have the right to break a land deed to provide services to its citizens.

Congress enacted the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 151 etseq., "to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers, and encourage the rapid deployment of new telecommunications technologies." Pub. L. No. 104-104, 110 Stat. 56, 56 (1996). At the same time, Congress recognized that there are legitimate state and local concerns involved in regulating the sites of telecommunications facilities. [See Voicestream Minneapolis, Inc. v. St. Croix County, No. 02-2889 (7th Cir. 2003).]

As illustrated by the case of AT&T Wireless Services of Fla., Inc. v. WCI Communities., Inc., Nos. 4D04-3285 and 4D04-3286,2005 Fla. App. LEXIS 14108 (Fla.App. 4th Dist. 2005), one such local concern, the site of telecommunications towers in public parks, remains subject to deed restrictions which limit the use of particular tracts of public land to specified "park purposes." In this particular case, a telecommunications tower was erected in a public park in the city of Coral Springs, Fla.

In 1975, a land developer had conveyed the land for Sherwood Forest Park to the city of Coral Springs. WCI Communities, Inc., (WCI) acquired the rights of the grantor under the terms of the deed conveying the land to the city. In pertinent part, the deed conveying the land to the city contained the following restriction:

In consideration of this conveyance, by acceptance hereof, the Grantee [City] agrees and understands and assures to Grantor that the above described property would be used and maintained solely for passive park purposes unless the express written consent of Grantor, its successors or assignees, is first obtained.

In October 1996, the city passed Ordinance 96-137 which allowed freestanding telecommunications towers to be placed in park and recreation areas greater than five acres. The legislative intent of this ordinance was to accomplish the following:

(1) promote the health, safety and general welfare of the citizens by regulating the siting of telecommunications towers; (2) provide for the appropriate location and development of telecommunications towers and antennas within the city; and (3) minimize adverse visual effects of telecommunication towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques.

Sherwood Forest Park was listed on the city's list of parks as potential sites for cellular towers. On July 9,2001, pursuant to the ordinance, the city entered into a lease agreement with AT&T Wireless Services of Florida., Inc., (ATT) to install a telecommunications tower in Sherwood Forest Park. The city leased 1,600 square feet of park land to ATT for the construction of a "Stealth Tree" tower, equipment building, fencing and other equipment.

In January 2002, the city processed and approved an application for the issuance of a building permit to ATT to allow construction of an 85-foot telecommunications tower, a maintenance building and access ways, supporting structures, and hard-surface areas. The city required ATT to construct the "stealth tree tower" in the form of a pine tree to blend in with the park's aesthetics. ATT paid the city a one-time payment of $10,000 to be used at the park and pays annual rent in the amount of $24,000.

In its complaint, WCI claimed the city's approval of the telecommunications tower was in violation of the deed restriction on the park's use. Specifically, WCI alleged that "the use contemplated by ATT and the structure submitted for a building permit was an active commercial use and not a passive use, and thus, the use and construction thereof are violative of the deed restriction." Moreover, according to WCI, neither the city nor ATT had requested or received WCI's "express written consent for the construction of the tower" as required by the terms of the deed. …

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