State Supreme Court finds for AT&T in cell tower case

It has been nearly four years since AT&T first filed an application for a special-use exception that would allow the company to erect a 100-foot-tall cell-phone tower on property just outside Bethany Beach Town limits, on the east side of Route 1 behind the Arby’s and gas station.

Despite the many hearings, decisions, appeals and public opposition that has happened in the intervening years, the application is now back to square one, with a Delaware Supreme Court decision on May 9 that reversed the 2012 decision that had denied approval for the tower.

History of case dates back to 2009

Back in October of 2009, a hearing on the special-use exception was scheduled before the Sussex County Board of Adjustments in Georgetown.

The hearing came as a surprise to town officials and many residents and property owners in the immediate area of the planned tower site. Many were wholly unaware of the proposal. Those who had noticed the sign posted on the east side of Route 1 saw its location in front of an abandoned home and overgrown lot and hadn’t publicly expressed concern about the project it described.

But the sign had been posted on the incorrect property, and publication of the hearing information in the Coastal Point was the first many people had heard of the tower, let alone that it was to be located behind the Arby’s, on land immediately adjacent to the Sea Pines Village community.

A grassroots campaign of opposition to the tower came together almost overnight, between the newspaper’s arrival on stands on a Thursday afternoon and the hearing the following Monday. Opponents argued that they hadn’t been properly notified about the application, with some nearby, mostly commercial, property owners having received direct notice and others not.

The incorrect location of the hearing sign further fueled their argument that proper notice had not been given.

Residents of Sea Pines Village, their attorneys, other nearby neighbors and Bethany Beach Town Council members testified in opposition to the application at that October 2009 hearing, many asking to at least be given additional time to prepare their case.

But, with County officials arguing that the direct written notification and on-site posting was a courtesy and not a requirement, the BoA rejected an extension of the hearing and went on to approve AT&T’s application in November of 2009, on a 3-2 decision.

Opponents then challenged that decision in court, while AT&T erected an 80-foot-tall wooden pole as a temporary tower on the site, which remained in place through subsequent court action.

The legal appeal was decided in 2010, in opponents’ favor, with the judge finding that the County had failed to properly notify the public about the application and hearing, at least in the confusion it had caused by posting the notice in the wrong location. AT&T would have to go through a new hearing before approval could be considered.

That second hearing, in 2011, again yielded arguments from AT&T and its representatives 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.

Court finds BoA applied incorrect legal standard

In the May 9 decision by the Supreme Court and Chancellor Leo Strine, the justices singled out the absence of the word “significant” in the 2011 BoA decision to deny AT&T a special-use exception.

“Special use exceptions are permitted ‘if the Board finds that, in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property,’” the majority opinion notes. The word “substantially” was italicized for emphasis.

Referencing a decision the Supreme Court had made in the case of Hellings v. City of Lewes Board of Adjustment, the opinion supported a reversal of the denial in the AT&T case, because, “A Board decision based upon the proper legal standard is a prerequisite to the court’s performance of a review to determine the existence of substantial evidence. … [H]aving determined that an error of law was made at the administrative level, the Superior Court was not free to review the evidence and apply a different, more lenient, legal standard because to do so would be to substitute its own judgment for that of the Board.”

“We must reverse in this case as well,” the opinion went on to state. “Special use exceptions are to be granted unless the Board finds the exception will ‘substantially affect adversely the uses of adjacent and neighboring property.’ ‘Some’ adverse affect is insufficient under the ordinance to deny a special use exception. By requiring AT&T to prove no ‘adverse affect,’ the Board and the Superior Court required a heavier burden of proof than the ordinance demands.”

In addition to finding that the BoA had applied the incorrect standard by not specifying that “significantly adverse effects” had been found, the Supreme Court in the May 9 decision declined to consider the facts as presented during the 2011 hearing and make its own decision as to whether the case presented indicated that the AT&T tower would pose “significantly adverse effects.”

“The [Sea Pines Village Home Owners] Association argues that even if the Board erred in applying the correct legal standard, we still should affirm. The Association claims that AT&T failed to prove that there is no existing structures within a two-mile radius available for use. We decline the Association’s invitation to address the sufficiency of the evidence before the Board. The sufficiency of the evidence on alternative locations is reviewed in conjunction with and not independent of the required analysis for the grant of a special use exception.”

The justices found that AT&T had met the county requirement to provide documentation that another suitable location could not be found within a 2-mile radius. They also questioned the board’s reliance upon representations by Bethany Beach officials 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.”

Finding that the BoA had applied the wrong legal standard in denying AT&T’s application in 2011, the Supreme Court’s majority reversed and vacated the decision of the Superior Court that had been in opponents’ favor and cleared the way for AT&T to once again apply for a special-use exception that would allow the tower to legally be built.

Strine finds fault with Board’s application of reliability standard

Strine had more to say about the case, adding in a separate section of the decision that he felt the Superior Court had improperly neglected to determine whether the evidence in the 2011 hearing had been legally adequate to support the Board’s decision, which he said it was required to do as part of the appeal process.

He further said that he found that the BoA had accepted the premise that AT&T had not fully exhausted other possible locations as a result of a Bethany Beach Town Council member asserting at the hearings that the water tower was potentially available for collocation. That, he said, had turned out to be erroneous.

“Likewise, the Town’s own role in leading the Board to believe the water tower was available for use rendered the Board’s ruling arbitrary and capricious. To permit a ruling of a county adjustment board to stand when it is premised on a false finding of fact that a municipality within the county itself caused the board to make is Kafkaesque and the essence of arbitrary,” Strine wrote in his opinion.

“The Board’s reliance on this clearly erroneous fact finding also undermined its determination that placing an antenna on the water tower would provide adequate coverage and thus that AT&T failed to substantiate its need for a freestanding cell tower,” he continued.

But, Strine said, “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, 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.”

Opponents urge County to correct problems with tower regulations

Sea Pines Village HOA spokesman Gary Bogossian told the Coastal Point this week that the decision had come as a surprise to the community.

“We were incredibly shocked, disappointed, and could not believe they would do something like this,” he said. “Essentially, they threw out the entire case, appeal and all associated with it, as if it never existed! (But we know it did — we were there for three years and spent hundreds of thousands of our dollars.)”

The Sea Pines Village HOA Board found fault with the BoA, County and the courts deciding AT&T’s appeal.

SPV HOA Board Member David Gerk wrote in an email to other board members after the decision, “The Supreme Court decided the case solely on the ‘substantially’ issue. If you will recall, the Board of Adjustment sloppily left out the word ‘substantially’ in its written opinion when it was describing that AT&T had failed to prove that the tower will not ‘substantially affect adversely the uses of adjacent and neighboring property,’ as it was required to do.”

He noted that the court had not addressed the other two grounds upon which the BoA had decided to deny AT&T’s application: AT&T not having shown that collocation locations were not available within two miles of the site; and their not having substantiated the need for the tower at the location.

Gerk said he felt the court had “dodged” the issues by saying the sufficiency of the evidence must be reviewed in conjunction with the analysis for granting the special-use exception. He also pointed out that Strine’s opinion “suggests that any of these grounds is sufficient to uphold the decision,” but said Strine “then analyzes the facts wrongly and focuses solely on the Bethany Beach water tower.”

In a letter to the editor released this week, the SPV HOA board wrote: “Many feel that someone needs to be held accountable for this. Is it the former BoA solicitor, who made the elementary, but colossal error? Or is it the Sussex County solicitor, who oversees county legal matters?

“Incredibly, by state law, the case cannot be remanded back to the County BoA so that they can correct this administrative error, and amend their ruling to rightfully include the word ‘substantially’ in their written decision, as was originally intended,” the Board stated in its letter.

Gerk said that either the SPV HOA or the County could have, after the decision, filed a request for a rehearing of the appeal, should they wish to argue that the Supreme Court had missed a critical issue in reversing the prior decisions. “Prevailing on such a request is infrequent,” he noted.

That leaves it likely that the parties in the tower case will be facing a trip back to square one at the Sussex County Board of Adjustments in the near future, with AT&T able to file a new application for the special-use exception with the County.

SPV’s HOA is now urging the County to take proactive steps to deal with related issues, particularly the potential for damage, or worse, should a cell tower fall on adjacent property in the future, as they said has happened in the past, even when such towers are constructed to existing standards.

“In light of this debacle, we would again ask the County to immediately amend and fix the cell tower ordinance regulations to require an adequate minimum residential buffer and setback, to protect us all,” they wrote. “This can be done immediately. We had given the County the proposal for this over 18 months ago.”