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9.A.2. SETTLEMENT OF LAWSUIT, NEXTEL SOUTH CORPORATION V. INDIAN <br />RIVER COUNTY, U.S. DISTRICT COURT, SOUTHERN DISTRICT, CASE <br />No. 06-14274-CIv-GRAHAM (QUASI-JUDICIAL) <br />PROOF OF PUBLICATION OF ADVERTISEMENT FOR HEARING IS ON FILE IN THE <br />OFFICE OF THE CLERK TO THE BOARD <br />The speakers were sworn -in by the Clerk. <br />County Attorney Collins informed the Board that the tower was the subject of a <br />public hearing at the September 12, 2006 meeting. The Board voted 3-2 and denied the special <br />exception for the 100 -foot monopole tower where it was determined that there were more <br />appropriate locations that were further away from residential areas that would support the tower up <br />to 150 -feet in height. Nextell then filed suit against the County in Federal Court claiming the <br />Board's denial violated the Federal Communications Act of 1996, which provides the local <br />government the authority to approve the location of towers, but a denial has to be in writing, <br />supported by substantial competent evidence of written record. The Chairman wanted this to be <br />brought back for the "new" Board to consider. <br />Michael Burke, Johnson, Anselmo, Murdoch, Burke, Piper, & McDuff, P.A. <br />represents Indian River County in the suit. He informed the Board that the case is pending in the <br />Federal District Court and said the case is scheduled for an August 2007 trial. The assigned Judge <br />has permitted the parties to file dispositive motions and ordered the parties to attempt resolution <br />before the trial. The proposal to the Board (should approval be granted) is that Nextell would <br />waive any costs, attorney fees or other relief in the litigation. They also agreed that upon the <br />issuance of the building permit, the paperwork for the dismissal of the case would be filed. He said <br />County staff had reviewed the Ordinance and determined that the requirements, regarding the <br />location, had been satisfied and recommended approval of the application subject to several <br />conditions which staff had made of record and which Nextel had agreed to comply with. <br />February 20, 2007 14 <br />