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The construction of an 85-foot cell phone tower in a Coral Springs, Fla., park explicitly violated a deed restriction and should be torn down, Florida’s 4th District Court of Appeal ruled last week. A three-judge panel unanimously found that Sherwood Forest Park — which is on land deeded to the city by a development company — could not legally be used in a business venture without approval from WCI Communities, a Bonita Springs, Fla., real estate developer. Sherwood Forest was deeded to the city in 1975 by Florida National Properties, with the caveat that the park would be used “solely for passive park purposes unless the express written consent of grantor, its successors or assignees, is first obtained.” In July 2001, the city leased 1,600 square feet of park space to AT&T Wireless, now Cingular Wireless, for the cell tower, a building, fence and supporting equipment. The city approved the construction permits in January 2002. The tower was a so-called stealth cell tower, designed to look like a tree with bark, branches, and leaves so that it blended into the landscape. WCI, which acquired Florida National, sued AT&T Wireless and the city in April 2002 in Broward Circuit Court, seeking injunctive relief on the grounds that the construction was for commercial use and not for the passive use required by the deed. WCI also alleged that Coral Springs and AT&T never asked it for permission to build the tower. Judge Robert A. Rosenberg granted the injunction in July 2004. He did not order the immediate destruction of the tower, however, fearing it would have a negative public impact on cell phone service for 911 calls. Instead, he gave the defendants two years to relocate the tower. AT&T Wireless and the city of Coral Springs appealed to the 4th DCA in August 2004. They argued in AT&T Wireless Services of Florida Inc. and City of Coral Springs v. WCI Communities Inc. that the construction of the cell tower in the park was passive, meaning it did not create any activity, but simply sat there for the benefit of the public. They also argued that the tower’s impact was minimal and that destruction of the tower might cause a loss in service for cell phone users making 911 calls from the park. But last week, the three-judge panel, based on a plain reading of the deed, affirmed Rosenberg’s ruling. In an opinion authored by Judge George A. Shahood, the court said “here, the actual issue turns not on whether the telecommunications tower’s use was passive, as argued by appellants, but whether the use was consistent with the deed restriction that limits use ‘solely’ to ‘passive park purposes.’” The court rejected the appellants’ arguments concerning the public benefit of the cell tower and the purported minimal impact of the tower. Writing about the fenced off area around the tower, the court said “this exclusion cut off access to park property to the very members of the public for whose benefit the park was given. This exclusion was inconsistent with the deed restriction.” “While appellants characterize the telecommunications tower as a de minimis violation, it was nevertheless a violation of which they were aware and which they ignored. The public interest is best served by the maintenance of the parks, as dedicated and restricted, particularly where there is a common plan served by the parks,” the panel wrote. The panel also rejected the argument that the destruction of the cell tower would hurt the public because the tower supported 911 calls made in the area. “Appellant cannot negate the property and legal rights of others based on a decision regarding public safety,” the court said. “Clearly public safety was not the city’s most paramount concern as evidenced by its removal of phone service previously available to park users due to the low revenue it generated.” Chief Judge W. Matthew Stevenson and Judge Robert M. Gross concurred. James C. Brady of James C. Brady & Associates in Fort Lauderdale represented WCI Communities. AT&T Wireless was represented by David P. Ackerman of Ackerman Link & Sartory in West Palm Beach, Fla. Michael A. Weeks, who is no longer with Ackerman Link, also worked on the case. Coral Springs was represented by Kerry L. Ezrol and Michael D. Cirullo Jr. of Goren Cherof Doody & Ezrol in Fort Lauderdale and by John J. Hearn of the Coral Springs city attorney’s office.

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