Delaware Supreme Court hears AT&T cell tower appeal

Last week, the Delaware Supreme Court heard an appeal filed by New Cingular Wireless PCS to allow erection of an AT&T cell phone tower on property just south of Bethany Beach.

Attorney Richard A. Forsten, representing AT&T, said the opposition to the cell tower was “simply a case of ‘not in my back yard.’”

“People want cell phones. They need cell phones. They just don’t want the towers that come with them,” he said.

Forsten said that the Sussex County Board of Adjustment, and the Delaware Superior Court — which subsequently affirmed the board’s decision — had denied the application on the grounds that it would have an adverse effect.

He argued that, under Sussex County code, a cell phone tower application could only be denied if it creates a “substantial adverse effect,” and, he argued, the impact of the tower would not be “substantial.”

“The board left out ‘substantial,’ which created a lower threshold,” Forsten argued. “The board applied the incorrect legal standard.”

Justice Jack B. Jacobs asked Forsten to explain the difference and offer a definition of “substantial.”

“For a substantial adverse effect, the effect has to be substantial more than innocuous,” said Forsten.

“Substantial means substantial?” asked Jacobs. “Is that like pornography? I’ll know it when I see it?”

Attorney Robert V. Witsil Jr., who represented the Sussex County Board of Adjustment in defending the board’s denial of the application, said that defining “substantial” in this case was “a matter of semantics” and that the decisions of both the board and Superior Court were correct.

“Substantial is ‘not imaginary, hypothetical or conjecture.’ We contend that what my clients presented to the board was not hypothetical or imaginary. It was real.

“Lightning strikes can hit a cellular tower, causing it to catch fire and fall on homes, which are less than 75 feet away,” he said, noting that five of his clients own property in Sea Pines Village that is within the fall zone for the tower described in AT&T’s application. “That creates the potential for catastrophic injury. That is not illusory.”

Witsil also argued that AT&T had not contacted the Town of South Bethany to see if they would be able to put the antenna on top of the town’s water tower instead.

“South Bethany has a water tower where Verizon already has an antenna,” he noted. “In the record we have a letter from South Bethany, stating AT&T never contacted them.”

Forsten said that AT&T engineers had already determined that the South Bethany water tower would not work as a location for their antenna and that there was no point in contacting the town.

Justice Randy J. Holland asked Witsil what he felt should happen if the Superior Court’s decision was reversed. Witsil said the process for the tower should begin again, from square one.

The Board of Adjustment’s decision to not approve AT&T’s tower was actually the second time the board had considered the application. While they ultimately voted unanimously to deny the application, that vote only came after a re-hearing of the original application. A prior 3-2 vote in favor of the original application had been vacated, based on improper notification by the County for the original hearing.

The temporary wooden pole tower AT&T erected after that 3-2 vote has remained in place behind the Arby’s restaurant on Route 1, pending the re-hearing and then the appeal. A decision by the justices in AT&T’s appeal of the application’s denial is expected within the coming weeks.