It will be déjà vu all over again for parties involved in the cell tower controversy near Bethany Beach on Monday, Nov. 18, when the Sussex County Board of Adjustment will once again hold a public hearing on a special-use exception application from AT&T to erect a 100-foot-tall telecommunication tower at the rear of the Arby’s/BP property just south of Bethany town limits and east of Route 1.
The Delaware Supreme Court cleared the way for yet another do-over in the case when it found on May 9 for AT&T in the company’s appeal of a lower-court decision that had upheld the BoA’s 2012 decision rejecting the application due to the adverse impacts of the tower cited by opponents including the homeowners’ association of the adjacent Sea Pines Village community.
Monday’s hearing will be the third public hearing on the application, starting with the original hearing in 2009 that led to a 3-2 BoA vote in AT&T’s favor but complaints from opponents that the County had failed to properly notify the public and neighbors about the application and hearing, including having posted notice on the incorrect property.
AT&T erected an 80-foot-tall wooden pole on the proposed location as a temporary tower after that decision, and that pole has remained in place to this day, despite a County order that it be removed.
The board’s initial approval was reversed in 2010, when the courts found in favor of opponents, agreeing that the County had failed to properly notify the public of the application and hearing, and decreeing that AT&T would have to reapply for the special exception before a tower could be approved on the site.
AT&T subsequently applied again for the exception, with a new hearing held in 2011. AT&T and its representatives again argued that the tower was needed in that location because it was the only suitable location they had found that would allow the company to meet its requirements of providing service to customers in that area and that the impact of the 100-foot-tall, 3-foot-diameter monopole tower on neighboring properties was not significant.
Opponents from Sea Pines Village argued that not only was the adverse effect on their property values and perceived safety significant but that it had already been seen in what they testified were reduced sale prices and numbers for units in the complex since the public had become aware of the application.
They further argued that AT&T had not exhausted other potential locations for the tower, such as on the water tower owned by the Town of Bethany Beach or atop the Sea Colony high-rises nearby.
With additional facts and extended arguments presented during the 2011 hearing, the BoA voted unanimously to deny AT&T’s application, finding that the tower would adversely affect nearby property owners.
AT&T went on to appeal that decision, arguing that it had proven its case and that the BoA had made a legal error in not applying a standard of “significant” adverse impact on the neighboring properties. That appeal was denied by the Delaware Superior Court in 2012, leading AT&T to appeal that ruling to the state Supreme Court in a hearing held earlier this spring, which was decided May 9 in AT&Ts favor.
Opponents of the tower have argued that the BoA’s failure to include the word “significant” in its 2011 written decision against AT&T’s application was an oversight, rather than a legal failing, and they found fault with the Supreme Court’s decision to overturn the BoA’s denial. They also objected to the fact that the Supreme Court had refused to consider the merits of the BoA’s decision and the evidence presented to the board that had led to it.
“They did this with a misguided rationalization of an absurdly minor technicality in the BoA formal ‘write-up’ (ignoring all the citizen testimony, all the hearing evidence and the five board members’ unanimous comments) and, in so doing, gave unfettered support to the large corporation,” said Gary Bogossian, spokesman for the SPV Homeowner’s Association.
Supreme Court decision sets stage for new hearing
Now set as Case No. 11296 on the BoA’s Nov. 18 agenda, AT&T’s third application for the special-use exception is likely to see many of the same arguments made in the 2011 hearing, but with the additional weight of criticism of the BoA denial by the Supreme Court justices and, specifically, Chancellor Leo Strine.
In the May 9 decision, the justices found that AT&T had met the County requirement to provide documentation that another suitable location for the tower could not be found within a 2-mile radius.
They also questioned the board’s reliance upon representations by Bethany Beach officials at some points in the process that collocation on its nearby water tower might be possible, saying that their acceptance of those statements showed the importance of not “bypassing the administrative process.”
Since then, Bethany Beach officials have formally rejected the idea of collocation at the town water plant, where a new water tower is currently being constructed.
Additionally, in his separate opinion, Strine noted that, “instead of addressing AT&T’s contention that it needed a freestanding tower to provide ‘reliable’ coverage as an FCC licensee in the Bethany Beach area, the Board attributed to AT&T the notion that it was seeking ‘seamless’ coverage, a word that the expert who testified for the Association used, not AT&T.
“After doing so,” he wrote, “the Board then made a conclusory finding that implied if the permit was not granted, AT&T’s service, although not ‘seamless,’ would be ‘adequate,’ without seriously weighing the record evidence that service was not reliable in several areas of the town.”
Strine acknowledged, “in fairness to the Board,” that none of the parties before the Board “seemed to present clear authority as to the applicable FCC standard AT&T was bound to meet as a licensee. But rather than consider the relevant reliability standard, even if that took an additional hearing to obtain input regarding what the FCC means by that term in practical application, the Board instead made a conclusory ruling based on different concepts from the license requirement of reliability.”
Strine concluded that, when the Board examines the application again, it must “apply the relevant FCC standard in determining whether AT&T has demonstrated a sufficient need.”
Application called into question
Opponents of the tower are also arguing that AT&T doesn’t even have the right to make a new application for the special exception at the present time, since it has failed to comply with the County order to remove the temporary tower.
“After three years of protracted hearings and court cases, AT&T has unbelievably reapplied for the 100-foot cell tower located less than 75 feet from our homes. This, even while they are currently cited, and ordered by Sussex County, to remove the illegally constructed temporary tower,” Bogossian said in an appeal for opponents of the tower to turn out for the Nov. 18 hearing.
“Incredibly, they have thumbed their nose at the County and publicly refused to obey this order (under County regulations, they cannot even apply for this hearing while they are in violation — a ‘clean hands’ County policy).”
Sussex County adopted a “clean hands” policy in 2007 that requires applicants for County approvals, permits, licenses and/or the use, receipt or provision of County services to be current on obligations to the County prior to making any application. The idea behind the policy was to enhance the weight of the County’s ability to enforce its code and requirements, which council members said they felt were sometimes ignored because of a lack of enforcement.
The policy specifically lists among obligations required to be satisfied: property taxes; capitation taxes; water and/or sewer connection, front footage and/or usage charges; application fees; permit fees, including building permits, building code and inspection fees; and interest, penalties, court costs and/or attorney’s fees if applicable to a default in any of the other obligations.
Further, it dictates that “if any non-complying or incomplete payments, actions or filings are determined to exist, then the administrative agency or official shall, in writing, deny the license, application or other form of approval requested until all existing requirements for payment, actions or filings have been fully complied with or completed, clearly identifying in the written denial, the payment, action or filing required to be completed or complied with.”
However, the policy also notes that “failure by the appropriate administrative agency or official to issue such written denial within 10 working days from the receipt of an application shall enable the applicant to receive the permit or other approval for which application was made.”
The tower’s opponents are likely to make that argument during the Nov. 18 hearing, along with the new presentations of arguments already made — in some cases twice — as to whether the proposed tower would have a substantially adverse effect on neighboring properties and whether AT&T must locate a tower or antenna array on that property in order to meet the requirements of its FCC license.
The case is the only public hearing on the BoA’s agenda for its 7 p.m. meeting and the third item on that agenda, with two prior cases set for further consideration or action by the board before the tower hearing is to commence for its third iteration. The board could make a decision on the case on Nov. 18, though the extended arguments of the past hearings would suggest it is likely a decision would be delayed until a future meeting.