USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 24-11648 Non-Argument Calendar ____________________
GULFSTREAM TOWERS, LLC, Plaintiff-Appellee, versus BREVARD COUNTY,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:24-cv-00010-GAP-LHP ____________________ USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 2 of 8
2 Opinion of the Court 24-11648
Before JILL PRYOR, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: The question in this appeal is whether a county’s denial of a conditional use permit for solely aesthetic concerns was supported by “substantial evidence” as required by the Federal Telecommu- nications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii). Brevard County, Florida appeals the district court’s holding that it violated the Telecommunications Act when it denied Gulf- stream Towers, LLC a permit application for a 120-foot monopole wireless telecommunications tower. The district court held that the County’s generalized aesthetic objections did not constitute substantial evidence under the Telecommunications Act. It or- dered the County to approve the permit. We have consistently held that generalized aesthetic objec- tions, standing alone, cannot justify denial of an otherwise qualified application. Because the district court correctly concluded that the County’s factual support for its decision fell short of the substantial evidence requirement, we affirm. I.
Gulfstream, a telecommunications infrastructure provider, sought a permit from Brevard County, Florida, to construct a 120- foot monopole wireless telecommunications tower. The tower was designed to enhance cellular service coverage for T-Mobile. USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 3 of 8
24-11648 Opinion of the Court 3
Brevard County’s regulations establish objective criteria for wireless communications facilities. Gulfstream’s application com- plied with all those standards and lacked alternative co-locate op- tions. Immediately south of the proposed facility lies a residential community, encompassing hundreds of homes. As part of its appli- cation, Gulfstream included simulated photographs of the site, and in one of those photographs, the proposed tower was visible be- hind a home. Brevard County’s Board of County Commissioners consid- ered the permit application at a public hearing, where it received sixteen written objections and heard ten citizens speak in opposi- tion. Two of those citizens raised aesthetic objections, describing the tower as an “eyesore” and expressing concern over strobe light- ing required under County regulations. The District Commis- sioner whose district included the site moved to deny the applica- tion, describing the structure as incompatible with the surrounding residential area. The Board unanimously voted to deny the appli- cation and issued a written decision, Resolution No. 23-144, which incorporated verbatim from the hearing the statements of two commissioners and the objections of citizens regarding the pro- posed tower. The Resolution concluded that the tower would cre- ate a “significant adverse aesthetic impact on the surrounding land- scape and adjacent properties,” negatively affect the “scenic and visual character of the geographic area,” and was “incompatible with the surrounding area.” It cited no expert testimony or objec- tive evidence. USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 4 of 8
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Gulfstream sued under the Telecommunications Act, alleg- ing that the County’s denial violated the Act because it rested solely on generalized aesthetic objections. Both parties moved for sum- mary judgment. The district court granted summary judgment for Gulfstream, holding that subjective aesthetic concerns, unsup- ported by objective evidence, do not constitute substantial evi- dence under the TCA. The court declared Resolution No. 23-144 null and void and ordered the County to approve the application. The County appealed. II.
Brevard County raises two issues on appeal. First, it argues that its denial of Gulfstream’s CUP was supported by substantial evidence. Second, it contends that the district court applied the wrong standard of review by focusing on the Board’s stated reasons rather than the entire administrative record. Whether the County’s denial was supported by substantial evidence under the Telecom- munications Act, and whether the district court applied the correct standard of review, are both reviewed de novo. See Am. Tower LP v. City of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002). We address each issue in turn. A.
The Telecommunications Act requires that a denial of a wireless facility construction request be “in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). Although both parties agree that Resolution 23-144 USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 5 of 8
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satisfies the TCA’s “in writing” requirement, they disagree if there was “substantial evidence in [the] written record” to support the County’s decision. See id. We define “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclu- sion.” Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1218 (11th Cir. 2002) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The standard requires “more than a mere scintilla but less than a preponderance” of evidence. Michael Linet, Inc. v. Vill. of Wel- lington, 408 F.3d 757, 762 (11th Cir. 2005). That evidence must also be “objective and fact-based,” and not merely “generalized aes- thetic concerns.” Preferred Sites, 296 F.3d at 1219. “Aesthetic objec- tions coupled with evidence of an adverse impact on property val- ues or safety concerns can constitute substantial evidence.” Michael Linet, Inc., 408 F.3d at 761. The County argues the record contained substantial evi- dence in the form of (1) citizens’ expressed concerns about the pro- posed tower’s aesthetic impact and (2) Gulfstream’s simulated pho- tographs. We disagree. First, the County points to the residents’ statements in the record. These are subjective statements that the tower would be an “eyesore” or inconsistent with the neighborhood’s character. But we reject the sufficiency of these kinds of generalized objec- tions. We have explained that “[m]ere generalized concerns regard- ing aesthetics . . . are insufficient to create substantial evidence jus- tifying the denial of a permit.” Preferred Sites, 296 F.3d at 1219 (11th USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 6 of 8
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Cir. 2002). Instead, for aesthetic concerns to have any purchase, there must be evidence of property value decline or the like. Second, the County cites photographs submitted by Gulf- stream. The photographs show how the proposed tower would look from various viewpoints; in one, the proposed tower is visible behind a home.
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USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 24-11648 Non-Argument Calendar ____________________
GULFSTREAM TOWERS, LLC, Plaintiff-Appellee, versus BREVARD COUNTY,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:24-cv-00010-GAP-LHP ____________________ USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 2 of 8
2 Opinion of the Court 24-11648
Before JILL PRYOR, BRASHER, and ANDERSON, Circuit Judges. PER CURIAM: The question in this appeal is whether a county’s denial of a conditional use permit for solely aesthetic concerns was supported by “substantial evidence” as required by the Federal Telecommu- nications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii). Brevard County, Florida appeals the district court’s holding that it violated the Telecommunications Act when it denied Gulf- stream Towers, LLC a permit application for a 120-foot monopole wireless telecommunications tower. The district court held that the County’s generalized aesthetic objections did not constitute substantial evidence under the Telecommunications Act. It or- dered the County to approve the permit. We have consistently held that generalized aesthetic objec- tions, standing alone, cannot justify denial of an otherwise qualified application. Because the district court correctly concluded that the County’s factual support for its decision fell short of the substantial evidence requirement, we affirm. I.
Gulfstream, a telecommunications infrastructure provider, sought a permit from Brevard County, Florida, to construct a 120- foot monopole wireless telecommunications tower. The tower was designed to enhance cellular service coverage for T-Mobile. USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 3 of 8
24-11648 Opinion of the Court 3
Brevard County’s regulations establish objective criteria for wireless communications facilities. Gulfstream’s application com- plied with all those standards and lacked alternative co-locate op- tions. Immediately south of the proposed facility lies a residential community, encompassing hundreds of homes. As part of its appli- cation, Gulfstream included simulated photographs of the site, and in one of those photographs, the proposed tower was visible be- hind a home. Brevard County’s Board of County Commissioners consid- ered the permit application at a public hearing, where it received sixteen written objections and heard ten citizens speak in opposi- tion. Two of those citizens raised aesthetic objections, describing the tower as an “eyesore” and expressing concern over strobe light- ing required under County regulations. The District Commis- sioner whose district included the site moved to deny the applica- tion, describing the structure as incompatible with the surrounding residential area. The Board unanimously voted to deny the appli- cation and issued a written decision, Resolution No. 23-144, which incorporated verbatim from the hearing the statements of two commissioners and the objections of citizens regarding the pro- posed tower. The Resolution concluded that the tower would cre- ate a “significant adverse aesthetic impact on the surrounding land- scape and adjacent properties,” negatively affect the “scenic and visual character of the geographic area,” and was “incompatible with the surrounding area.” It cited no expert testimony or objec- tive evidence. USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 4 of 8
4 Opinion of the Court 24-11648
Gulfstream sued under the Telecommunications Act, alleg- ing that the County’s denial violated the Act because it rested solely on generalized aesthetic objections. Both parties moved for sum- mary judgment. The district court granted summary judgment for Gulfstream, holding that subjective aesthetic concerns, unsup- ported by objective evidence, do not constitute substantial evi- dence under the TCA. The court declared Resolution No. 23-144 null and void and ordered the County to approve the application. The County appealed. II.
Brevard County raises two issues on appeal. First, it argues that its denial of Gulfstream’s CUP was supported by substantial evidence. Second, it contends that the district court applied the wrong standard of review by focusing on the Board’s stated reasons rather than the entire administrative record. Whether the County’s denial was supported by substantial evidence under the Telecom- munications Act, and whether the district court applied the correct standard of review, are both reviewed de novo. See Am. Tower LP v. City of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002). We address each issue in turn. A.
The Telecommunications Act requires that a denial of a wireless facility construction request be “in writing and supported by substantial evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). Although both parties agree that Resolution 23-144 USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 5 of 8
24-11648 Opinion of the Court 5
satisfies the TCA’s “in writing” requirement, they disagree if there was “substantial evidence in [the] written record” to support the County’s decision. See id. We define “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclu- sion.” Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1218 (11th Cir. 2002) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The standard requires “more than a mere scintilla but less than a preponderance” of evidence. Michael Linet, Inc. v. Vill. of Wel- lington, 408 F.3d 757, 762 (11th Cir. 2005). That evidence must also be “objective and fact-based,” and not merely “generalized aes- thetic concerns.” Preferred Sites, 296 F.3d at 1219. “Aesthetic objec- tions coupled with evidence of an adverse impact on property val- ues or safety concerns can constitute substantial evidence.” Michael Linet, Inc., 408 F.3d at 761. The County argues the record contained substantial evi- dence in the form of (1) citizens’ expressed concerns about the pro- posed tower’s aesthetic impact and (2) Gulfstream’s simulated pho- tographs. We disagree. First, the County points to the residents’ statements in the record. These are subjective statements that the tower would be an “eyesore” or inconsistent with the neighborhood’s character. But we reject the sufficiency of these kinds of generalized objec- tions. We have explained that “[m]ere generalized concerns regard- ing aesthetics . . . are insufficient to create substantial evidence jus- tifying the denial of a permit.” Preferred Sites, 296 F.3d at 1219 (11th USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 6 of 8
6 Opinion of the Court 24-11648
Cir. 2002). Instead, for aesthetic concerns to have any purchase, there must be evidence of property value decline or the like. Second, the County cites photographs submitted by Gulf- stream. The photographs show how the proposed tower would look from various viewpoints; in one, the proposed tower is visible behind a home. The County relies on this image as objective evi- dence. But the Board did not identify any of these images in its Res- olution, during the hearing, or when explaining the vote. And the County’s references to these images are nothing more than a re- packaged version of the County’s generalized concerns about aes- thetics. That a tower may be visible is not substantial evidence that justifies, by itself, denying a permit under the Telecommunications Act. The County says that its regulations give the Board discre- tion to weigh aesthetic factors and lowers the evidentiary thresh- old. But it cannot eliminate the Telecommunication Act’s require- ment that those considerations be supported by objective evidence. See T-Mobile S., LLC v. City of Roswell, 574 U.S. 293, 301 (2015). Be- cause the record contains only subjective opinions and the Resolu- tion fails to reference any other possible evidentiary bases for its denial, the County does not and cannot satisfy the substantial-evi- dence requirement. B.
The County also argues that the district court erred by lim- iting its analysis to the Board’s stated reasons rather than reviewing the entire record. It contends that even if the Board failed to USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 7 of 8
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expressly cite certain evidence, courts should uphold its decision if other parts of the record support it. This argument fails for two reasons. First, the Supreme Court’s decision in T-Mobile S., LLC v. Ro- swell requires that a locality’s written decision contain reasons suf- ficient to permit meaningful judicial review. 574 U.S. at 301–02. Courts may not supply rationalizations by combing through the record for evidence a decisionmaker did not identify. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (administrative decisions must be judged “solely by the grounds invoked by the agency”). When the County published Resolution 23-144, it did not identify “rele- vant evidence as a reasonable mind might accept as adequate to support [its] conclusion.” Preferred Sites, 296 F.3d at 1218. Instead, the text of the Resolution contained conclusory statements that the proposed tower “is incompatible with the character of the proper- ties surrounding the subject property and creates a negative aes- thetic impact.” It relied explicitly on aesthetic concerns and made no reference to anything else. Second, even if we were to consider the entire record, it does not cure the deficiency: the only meaningful evidence in the record consists of photographic simulations. And, as we discussed above, the County’s subjective assessment of those photographs is not enough to support the Board’s decision. The district court correctly concluded that the County violated section 332(c)(7)(B)(iii). USCA11 Case: 24-11648 Document: 43-1 Date Filed: 08/13/2025 Page: 8 of 8
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III.
AFFIRMED.