Condo proposal increases static between North Bay Village, Clear Channel
By Jaime Levy
A years-long battle pitting airwaves against land-use laws has officials of both Clear Channel Communications and North Bay Village brandishing ominous predictions of the future as rhetorical weapons.
In the midst of a would-be development boom, North Bay Village has approved 760 units for construction - significant growth for a community with a population just more than 6,700. But one of its dearest proposed developments, Sunset Bay Lofts, a condo complex with an award-winning design, is the latest in a string of projects to which Clear Channel objects.
And when Clear Channel objects, a flurry of litigation ensues.
North Bay Village's three residential islands, all man-made, line the 79th Street Causeway around Broadcast Key, site of WSVN-Channel 7 satellites and WIOD radio's broadcast tower.
The village incorporated in 1945, almost 20 years after WIOD went on the air. San Antonio-based Clear Channel, which owns, programs or sells airtime for 1,200 radio stations, bought the station in 1997 from Paxson Communications as part of a $627 million deal, according to Radio Business Report.
The current knot of legal complaints, appeals and volleys of rhetoric between Clear Channel and the village tangles back to December 1997, when the village commission approved a bonus ordinance that let developers build above a 15-story limit if they included characteristics such as setbacks that would allow water views between buildings.
One developer moved quickly to take advantage of the law, offering a 24-story project at 7900 Larry Paskow Way - the base of Harbor Island, which is the horseshoe-shaped home to the dozens of condo and apartment complexes most prone to development.
But, Clear Channel argued, the project - less than a half mile from its two 300-foot antennas - would so drastically alter its signal shape that WIOD would violate its Federal Communications Commission-regulated parameters and effectively be shut down.
"AM stations are very sensitive to things constructed in close proximity," said Edward De La Hunt, assistant chief of the audio service division for the mass media bureau of the FCC, speaking generally of AM towers. "If somebody places anything within a couple of miles of that facility and they interact with the system, it can distort the pattern. If the pattern is distorted, (the station) might not be able to comply with licensing standards."
But Clear Channel's win that time meant a loss for the developer.
"I lost partners in the deal, I lost financing, I lost millions," said Geoffrey Paskow, whose family owns the site that was formerly home to the Harbor Island Spa. Now, he has received approval for Harbor Cove, a two-building residential project that doesn't top 150 feet. "When a man says to you, 'When I get out of state court I'm going to federal,' there's not a bank in the world that will lend with litigation of that magnitude."
Since Mr. Paskow's initial project was buried, Clear Channel has continued to oppose projects on Harbor Island west of its tower of more than 15 stories. The most recent is Sunset Bay Lofts, a 49-unit luxury condo complex that would stretch to 17 stories. The project has just received site plan approval from the city; Clear Channel has until mid-April to file a petition appealing the decision.
"We would have degradation to the loss of 480,000 people when they build this building," said David Ross, regional vice president for Clear Channel. "The engineering study delineates that there would be signal damage, which in essence is taking our property. The commission is using its power and authority to, in essence, shut our business down."
Unlike FM antennas, Mr. Ross said, the larger AM transmitters cannot be placed atop buildings to accommodate growth around them. In fact, he said, the whole tower, from top to bottom, is an active transmitter.
"We have exhausted every possible engineering angle. There's no place to move it," Mr. Ross said. He said it would take 90 acres of Intracoastal property in the Pompano Beach area to maintain the signal's strength.
"If the building goes up, you can still operate the radio station. However with the loss of ability suggested right now, we could not prove to the FCC that we were operating in our licensed parameter and the FCC could shut us down," he said. "If you put something in the way, you're reflecting radiation. The radiation will have to go somewhere, and it would encroach on another broadcast.
"We can't be forced by a government entity to impede on other governmentally licensed facilities."
But both city officials and the developer of Sunset Bay Lofts - West Bay Village Ventures - say they will not stop fighting, either. Michael Larkin, an attorney with Bercow & Radell representing West Bay Village Ventures, said the antenna is not close enough to the property to be legally considered a neighbor.
"Traditionally, Clear Channel's approach is that they're the ones with deep pockets. They can ensnare you in as much litigation as they can throw money at and delay you months or even a year," Mr. Larkin said. "It's delay litigation. It's without merit. It's something they do. West Bay Village Ventures can wait it out."
Mr. Dorne said that because of North Bay Village's stunted growth, tax rates are much higher than he'd like. Last September, the village approved a budget that set taxes 10% higher, at $5.76 per $1,000 assessed evaluation.
"We need to be able to grow like other growing cities do - within reason, but it needs to grow," Mayor Alan Dorne said. He said the village is now looking into whether the towers are structurally sound as well as the levels of radiation coming from them. The Federal Communications Commission regulates broadcast towers' radiation levels.
"The city cannot be held hostage for benefits that are not shared by all the residents - the people who live here and have businesses here," Mayor Dorne said. "You can't hurt a lot of people and only have one person benefit. I believe largely because of the antenna problem, development did not happen like in other cities around it."
City Manager Rafael Casals said he believes many developers are either hesitating or backing away from North Bay Village, despite its development-friendly policies.
"It's been very tough. They're basically an advocate for their own well-being without a heck of a lot of concern for the city's well-being," Mr. Casals said. "We meet two to three times a week" with developers.
"The first question from developers is 'What's with Clear Channel?' It's frustrating for the city when we have developers coming in and asking about Clear Channel. They go somewhere else."
Mr. Ross at Clear Channel said he is willing to work with individual property owners to try to engineer around the towers' signals. After all, he said, different parcels might have different heights with which the signals could work.
"They're not willing to try to engineer around anything. If they're having problems financing, it's not my fault - it's their fault," he said. "I didn't sign up to spend $30,000 or $40,000 on (engineering) studies. But if someone's willing to pony up and work with me, I'm willing to take that as my responsibility long before they decide what to design."
And according to Mr. De La Hunt of the FCC, it could be in developers' best interests to work with the radio station - not because of threatened lawsuits, but because signal interference can be a double-edged sword.
"Any development that goes next to an AM system or an antenna farm needs to really pay close attention to what's there, to what materials are used. If you don't, you're going to have potential problems of interference to the telephones, or potentially talking toasters," Mr. De La Hunt said. "Buildings that have metal would become part of the system inadvertently. All of those potentially have an impact on the radio station itself, or, all of a sudden, the walls might start talking to people, or playing the radio station."
Mr. Larkin, the attorney representing the Sunset Bay Loft developers, said the project is far enough from the radio towers - more than 1,600 feet away - to avert those types of problems.
One developer and real estate agent looking into building on Harbor Island recently met with Mr. Ross, he said, and expressed a willingness to consider the ramifications of a potential development on the tower. Although they originally wanted more than 15 stories, he said, they eventually said they could "live with" 15. Mr. Ross would not say who the developer and real estate agent were.
"I fail to understand why (developers) can't build 15 stories, why they have to build 19," he said. "The answer is to make less money, build 15 stories and we'll all get along."
But a few extra stories, Mr. Paskow said, can mean a lot more money. "When you're on the water, the higher you go, the more you can sell apartments for," he said. "Apartments are worth more the better view you have."
With both village and WIOD officials saying their futures are at stake, neither is likely to back down soon.
"When they moved out of the city, they may have forfeited their rights," Mayor Dorne said, referring to WIOD's late-1990s move to Clear Channel headquarters in Miramar. "The business left and we were stuck with an antenna. Do we want to be a good neighbor? Absolutely. But we don't want the city to suffer because of it. We want to thrive in spite of it. The city's not going to be intimidated."
"I'll turn the tables," Mr. Ross said. "When are they going to understand that this station is a treasure within their city? It was there before the city was built, and I have no way out. I either turn it off or fight. What else would anyone have me do?"