Sussex County Board of Adjustments members on Monday, Nov. 2, approved a special-use exception for a 100-foot-tall monopole telecommunications tower off Route 1 near Bethany Beach town limits, despite ongoing opposition from some neighboring property owners and residents.
In a 3-2 vote that included opposition from Board Member Ronald G. McCabe, who represents the district in question, the board approved the exception that will permit AT&T to build the tower behind the existing Arby’s, gas station and convenience store, adjacent to the Sea Pines Village townhome community.
Opponents of the tower have continued their opposition to it since being denied a re-hearing on Oct. 19 and turned out en masse on Monday to await a decision in the case. Emotions were running high as the decision was announced, with at least one opponent loudly expressing her displeasure to the board while she and others exited County Council chambers.
The statement spurred the board’s legal counsel, Assistant County Attorney Richard Berl, to threaten the woman and fellow supporters with jail time.
“Keep your mouths closed,” he shouted. “Unless you want to spend the rest of the night in jail, ma’am, keep your mouth closed.”
“Did you have something to add, sir?” he inquired pointedly when a male opponent also made comment as the group left the room.
“I think it’s the fairness issue that gets us,” SPV property owner and HOA president Gary Bogossian told the Coastal Point on Wednesday, reiterating opponents’ complaints about the process that led to Monday’s board ruling in favor of AT&T.
Opponents have objected to irregularities with the on-site notice and notice letters sent to less than a quarter of the surrounding property owners, which included none of Sea Pines Village’s 45 property owners – all of whom oppose the tower. Most of them said they only heard about the Sept. 21 public hearing on the application days before the hearing, as word spread from the publication of the Sept. 18 Coastal Point.
Bogossian said the comment that led to the threat of jail time on Monday was something along the lines of “I can’t believe you guys did this,” and he said he found Berl’s behavior to be more objectionable.
“He went way over the top. That kind of a threat from a solicitor is unwarranted. That’s just wrong,” he said. “Emotions are high. We’ve been working at this a long time. It was 10:15 at night. We were all tired. But you’d expect better than that from a lawyer, or I would, at least.”
Opponents already planning appeals
Monday’s meeting is unlikely to be the last time the board and opponents of the tower square off, or the last time the rules about county Board of Adjustments hearings are at issue.
“We’re obviously disappointed in their ruling. … We are prepared to pursue this as much, as long and as hard as we can,” Bogossian promised this week. “We will exhaust every available avenue we can use to challenge this,” he said.
First among those options is a planned request for a re-hearing of the entire case. The board’s rules require that such a request be filed within 10 days of the board’s decision, so the Sea Pines Village group and other opponents plan to file that request soon.
The board already heard a similar request, prior to this week’s decision in the case, and denied a re-hearing. Opponents cited the irregularities with the notice and noticing process in requesting the re-hearing last month, but Berl advised the board that they did not have to re-hear the case as the irregularities did not reach such a level as to have necessitated it.
Now that a decision has been reached, they can again make that request.
“We expect that to be denied,” Bogossian acknowledged.
Additionally, the opponents also plan a court appeal, which must be filed within 30 days from the filing of the board’s written decision.
“We’re not going to wait for 30 days,” Bogossian said. “We’re going to try to file it as soon as we can. As soon as that is available, we’ll file as soon after that as we’re prepared to.”
The court appeal would ask for the state Superior Court to review the case and determine whether the board’s decision should be overturned.
“We don’t believe proper procedure was followed,” Bogossian explained. “And we didn’t get fair hearing because we didn’t receive proper notice and didn’t get a chance to present our rebuttal to the attorney’s case in a fair manner. … We would have presented quite a bit of evidence.”
Bogossian took particular issue with Board of Adjustments Member John Mills’ statements on Nov. 2 about the evidence presented in the Sept. 21 hearing.
“The applicant did submit an appraisal from an expert showing no adverse affect on property values,” Mills noted. “There was nothing from the opponents that showed otherwise.”
“When Mills said that one of the most important things to consider was that it wasn’t a detriment to the surrounding community … and – he’s calling us the opposition, not the neighbors – that we didn’t present expert testimony to the contrary…” Bogossian began. “We would have done that. He’s using the fact that we didn’t get in there to do that and using that fact [to make AT&T’s case]. There’s some perverted logic here that doesn’t make sense. It doesn’t follow normal standards.”
Bogossian said the opponents will be looking to present their own expert opinion on the issue of property values.
“They never acknowledged the rental income and the effect it will have on it, which we think will be significant,” Bogossian said. “There are people who would come there with their families and they’ll be looking to rent somewhere else now.
“Regardless of what the FCC says about [health issues related to cellular towers], there’s a perceived danger that is real,” he added. “It will reduce rentals and rates. And if that doesn’t have an effect on the value of the property, nothing else will.”
Bogossian found fault with the expert opinion AT&T’s paid consultant provided.
“The appraisal comes down to one or two paragraphs the appraiser put in bold, italicized letters,” he noted. “It does not find any evidence to support that values will be reduced – not that they wouldn’t be reduced or that his expert opinion is that they wouldn’t be. I think we could find people who think it would be reduced.”
Notice issues remain unresolved
Also still at issue is the question of proper notice to surrounding property owners, which the opponents learned had been given to only about 10 neighboring property owners – most of whom own commercial properties.
“At the Sept. 21 hearing, they said in response to Bethany Beach’s letter that [Bethany officials] weren’t required to receive written notice, only people within 200 feet,” he pointed out. “Then, on the 19th, they turned that around and said it didn’t matter that people within 200 feet didn’t receive written notice.
“Their interpretation completely invalidates it,” he said of the notification rule. “You could say, ‘Why send a notice out to anybody ever again?’ – or, even worse, the board could chose to send the notice to people they know would be in favor.
“We believe they made a mistake, and the county council needs to look at this very closely,” he added. “In this day and age, I don’t understand how you can have a rule like that and strike it down in the same rule.”
Alternative locations are points of contention
Opponents are also likely to take issue with other portions of Mills’ reasoning for supporting the application.
“The applicants also stated there were no alternate sites available,” he said on Monday.
In fact, AT&T’s employees and consultants testified on Sept. 21 that the proposed site for the tower was the best of the sites they had found among 30 considered but did not state that it was the only suitable site.
“We feel there are lots of reasonable alternatives,” Bogossian said. “The engineer stated there were over 30 that they had looked at. We don’t know what those are. If we’d had an attorney at that hearing, he would have asked, and we would have gone through them.”
Bogossian noted the presence of cellular antenna arrays on the top of a utility pole a quarter-mile from the site.
“It’s very unassuming,” he said of the approximately 20-foot-tall extension of the pole. “We do know other people do things that provide adequate cell coverage.”
“There are alternatives, but they’re not willing to explore those and didn’t give us the option to ask what are the other options,” he added, pointing to rumored discussions between AT&T and Sea Colony representatives about possible use of a maintenance facility near the site at which a tower could be located.
“It’s zoned commercial,” Mills also noted of the site on Monday, to Bogossian’s dismay.
“Yes, the property’s zoned commercial, but he didn’t mention the dense residential community surrounding the property.”
That kind of information is likely to be mentioned in appeals of the board’s Nov. 2 decision. Bogossian said the Sea Pines Village property owners and other opponents are looking to continue to gather support from others who oppose the tower in that location, even though it appeared this week that the Town of Bethany Beach would not officially be a party in the appeals due to issues of standing.
“We’ll welcome anybody’s support that doesn’t want to see this,” Bogossian said.
He also noted that it is possible AT&T may decide to begin construction of the tower before the opponents can have their appeals heard. County documents regarding such cases point out that an appeal can occur on any case within 30 days and that any construction applicants do in that period is being done at their own risk.
“In my experience, no one issues building permits until that period is over,” said Bogossian, an architect by trade. But he allowed that construction on this project could legally commence as soon as permits are issued.