       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

 LITTLE CLUB CONDOMINIUM ASSOCIATION, a Florida not-for-profit
   corporation, NORTH PASSAGE HOMEOWNERS’ ASSOCIATION, a
   Florida not-for-profit corporation, and DYNAMIC TOWERS INC., a
                         Florida profit corporation,
                                Appellants,

                                     v.

MARTIN COUNTY, a political subdivision of the State of Florida, KENAI
          PROPERTIES, LLC and RG TOWERS, LLC,
                            Appellees.

                              No. 4D17-2797

                           [November 21, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Barbara W. Bronis, Judge; L.T. Case No. 2016-CA-000863.

   Tim B. Wright of Wright, Ponsoldt & Lozeau Trial Attorneys, L.L.P.,
Stuart, for appellants.

   Jack J. Aiello, Christopher P. Benvenuto, and Brian M. Seymour of
Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees Kenai
Properties, LLC and RG Towers, LLC.

   Sarah W. Woods, County Attorney, and Ruth A. Holmes, Senior
Assistant County Attorney, Stuart, for appellee Martin County.

FORST, J.

   Appellants Little Club Condominium Association, North Passage
Homeowners’ Association, and Dynamic Towers Inc. appeal the trial
court’s final summary judgment in favor of Appellees Martin County, RG
Towers, LLC, and Kenai Properties, LLC. The trial court found that the
Martin County Board of County Commissioners’ approval of the
construction of a wireless telecommunications (cellular or “cell”) tower was
consistent with the county’s comprehensive growth plan as a matter of
law. We affirm.

                                 Background
   RG Towers and Kenai Properties sought the county’s approval to erect
an eighty-foot cell tower, designed to look like a pine tree, within close
proximity of residential homes in the communities of Little Club and North
Passage. The homeowners’ associations, along with Dynamic Towers, a
competing cell tower company, intervened in a quasi-judicial hearing.
Appellants argued that the cell tower would not be “stealth,” as required
under the county land development regulations for land with a residential
land use designation. The test under the county’s land development
regulations to determine whether a cell tower is stealth is whether “an
average person would be unaware of its presence as a tower.” Martin Cty.,
Fla., Land Dev. Regulations § 4.792. The Martin County Board of County
Commissioners (“the Board”) approved the tower.

   Appellants filed a petition for writ of certiorari to the Nineteenth Judicial
Circuit Appellate Division, arguing the Board’s “stealth” determination was
not based on competent substantial evidence. At the same time, they
brought a section 163.3215(3), Florida Statutes (2016) action in the trial
court below. There, they argued the development order approving the cell
tower was inconsistent with the county’s comprehensive growth
management plan, specifically Goal 4.4 and Objective 4.4D, which state:

      Goal 4.4. To eliminate or reduce uses of land that are
      inconsistent with community character or desired future land
      uses.

      ....

      Objective 4.4D. To continue to evaluate the Land Development
      Regulations and adopt revisions to address current issues
      before the County, such as:

      ....

      (2) Policy regarding communication towers (i.e., fall distance
      and lighting standards) . . . .

A secondary argument was that the cell tower was not stealth, making it
inconsistent with Goal 4.4 and Objective 4.4D.

   The trial court entered final summary judgment in Appellees’ favor,
holding “there can be no genuine issue of any material fact with respect to
whether the development order at issue in this case is consistent with Goal
4.4 or Objective 4.4(D) because neither . . . are proper standards by which

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to measure the consistency of the development order with the
comprehensive plan.” Before rendering final judgment, the trial court
noted that Appellants’ stealth challenge was confined to certiorari review,
and that Appellants had a certiorari petition pending. This appeal
followed. The appellate division of the circuit court has since denied the
petition for certiorari review.

                                  Analysis

   The standard of review of a summary judgment is de novo. Pitcher v.
Zappitell, 160 So. 3d 145, 147 (Fla. 4th DCA 2015).

   Appellants argue summary judgment was erroneous for the following
reasons: (1) the trial court erred in finding Goal 4.4 and Objective 4.4D are
not proper standards to measure consistency, especially in light of
Appellants’ expert’s testimony that the proposed tower was inconsistent
with the two provisions; and (2) the cell tower would not be stealth, making
it inconsistent with the two provisions, which incorporate the land
development regulations. Appellants’ arguments lack merit, and we
address each in turn.

   Regarding Appellants’ expert’s testimony that the erection of the cell
tower would be inconsistent with Goal 4.4 and Objective 4.4D, it is true
that expert testimony may be presented in the form of an opinion “[i]f
scientific, technical, or other specialized knowledge will assist the trier of
fact in understanding the evidence or in determining a fact in issue.” §
90.702, Fla. Stat. (2016). Cf. Gyongyosi v. Miller, 80 So. 3d 1070, 1074
(Fla. 4th DCA 2012) (finding the trial court did not err in prohibiting an
expert from defining the term “demolition” within the meaning of a safety
regulation, as the issue was a question of law to be resolved by the trial
court). However, objective 4.4D merely calls for a policy regarding
communications towers—a policy which was in place. It does not prohibit
particular tower designs. Thus, specialized knowledge could shed no
further light on the matter.

   Goal 4.4 is directed to eliminating nonconforming uses. The property
is designated as residential in the land uses, which are part of the
comprehensive plan. § 163.3194(3)(a), Fla. Stat. (2016). The land
development regulations allow for cell towers in residential areas, provided
that additions cannot be made to existing towers; the towers are stealth;
and the towers cannot be placed in industrial, agricultural, or commercial




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land use locations. §§ 4.795.E, 4.796.B. 1 Cf. Rehman v. Lake Cty., 56 So.
3d 852, 853-54 (Fla. 5th DCA 2011) (finding the rezoning of a piece of
property to commercial was consistent with the county comprehensive
plan because the future land uses permitted the rezoning). Therefore, as
a matter of law, the tower was consistent with Goal 4.4, assuming it met
the above-noted requirements.

   Howell v. Pasco County, 165 So. 3d 12 (Fla. 2d DCA 2015), cited by
Appellants, is distinguishable. There, the trial court erred in granting
summary judgment in light of conflicting expert reports. Id. at 14-15. The
Second District reasoned that, although the mining operation in question
was listed as a permissible use in the county comprehensive plan’s
appendix, special approval was required for ancillary processing, meaning
that the trial court could not find as a matter of law that the mining was
per se permissible. Id. at 15. In Howell, specialized knowledge would have
been helpful in understanding the character of the mining to determine
whether it was consistent with the comprehensive plan. Here, on the other
hand, the plan provisions at issue do not address the required character
of communication towers. Therefore, the trial court rightly found, as a
matter of law, that Goal 4.4 and Objective 4.4D were improper standards
to evaluate the tower, and it was the land development regulations that
applied.

    To that end, Appellants maintained below and on appeal that the
proposed tower would not be stealth pursuant to section 4.792 of the
regulations. This is essentially the same argument that was made in their
certiorari petition—that the Board lacked competent substantial evidence
to find that the tower was stealth. The only difference is the standard of
review applied, as Appellants explained at oral argument. 2 Thus,
Appellants attempted to pursue the same argument in two separate
appeals. This course of action, aside from taking two bites of the apple,
risked inconsistent results. The circuit appellate division might have
found the Board lacked competent substantial evidence, and the trial
court might have found the tower was stealth. Thus, the trial court
appropriately dismissed the stealth arguments below. Cf. Century Sur. Co.


1 Appellants do not argue that the cell tower could have been placed in a different
land use area, likely because they wanted Dynamic’s tower in the residential
zone, just further removed from residential property.
2 The circuit appellate division would have reviewed the Board’s decision under

the competent substantial evidence standard. See Town of Manalapan v.
Gyongyosi, 828 So. 2d 1029, 1032 (Fla. 4th DCA 2002). Section 163.3215(3)
provides the right to a de novo “action” before the trial court.


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v. de Moraes, 998 So. 2d 662, 663 n.1 (Fla. 4th DCA 2009) (“Abatement
has been utilized to terminate one of two actions pending simultaneously
which involve the same parties and the same issues.”).

    This is not to say that Appellants could have challenged the Board’s
stealth determination in the trial court had they not filed the petition.
Section 163.3215(3) permits only a challenge to a county board action,
“which materially alters the use or density or intensity of use on a
particular piece of property which is not consistent with the
comprehensive plan.” Land development regulations are not part of
comprehensive plans. § 163.3177(1), Fla. Stat. (2016); see also Buck Lake
All., Inc. v. Bd. of Cty. Comm’rs of Leon Cty., 765 So. 2d 124, 127 (Fla. 1st
DCA 2000) (holding that compliance with the comprehensive plan is to be
determined by reference to “the objectives, policies, land uses, and
densities and intensities in the comprehensive plan,” not the implementing
ordinances (quoting § 163.3194(3)(a), Fla. Stat. (1997))). Martin County’s
regulations provide that they are to work “in conjunction with the Martin
County Comprehensive Growth Management Plan.” Martin Cty., Fla.,
Land Dev. Regulations § 1.3. Objective 4.4D merely calls for revisions to
regulations to reflect present and future policy choices “regarding
communication towers”; it does not incorporate these regulations into the
comprehensive plan. Therefore, the trial court lacked jurisdiction to review
the stealth determination.

   Because “traditional site plan review is a quasi-judicial act . . . , review
other than on a consistency challenge is limited to certiorari.” City of
Coconut Creek v. City of Deerfield Beach, 840 So. 2d 389, 395 (Fla. 4th
DCA 2003) (citing Park of Commerce Assocs. v. City of Delray Beach, 636
So. 2d 12, 15 (Fla. 1994)). In the instant case, the Board conducted an
evidentiary hearing that was quasi-judicial in nature, and it made the
factual determination that the cell tower would be stealth. Thus,
Appellants’ challenge under the regulations was confined to certiorari
review.

                                 Conclusion

   The trial court did not err in finding as a matter of law that the
comprehensive plan provisions raised were not proper standards to
evaluate the proposed cell tower. Because the county’s land development
regulations permit towers in residential areas, we cannot say that the
proposed tower is inconsistent with Goal 4.4 without reviewing the Board’s
stealth determination—a challenge to which is confined to certiorari
review. Therefore, we affirm this and all other issues on appeal.


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   Affirmed.

MAY, J., and HILAL, JENNIFER, Associate Judge, concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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