BOA denies re-hearing, tables tower vote


It wasn’t the approval opponents of the proposed communications tower near Bethany Beach have been fearing, but the Sussex County Board of Adjustments delivered an unwelcome verdict for the group on Monday, Oct. 19, voting unanimously not to re-open the record and the public hearing on the special-use exception requested by AT&T.

Property owners in the Sea Pines Village community on the adjacent parcel, Bethany Beach officials and other nearby residents have been organizing a campaign of opposition to the tower since they first heard about it, just days before the public hearing on the application, on Sept. 21.

Legal counsels for both groups submitted formal requests for a re-hearing in advance of an anticipated decision on the application this week under the board’s Rule 18, citing problems with the county’s noticing the public and nearby property owners.

Ahead of that decision, board members were asked to vote on whether to accede to the requests for a re-hearing and were given advice from their legal counsel, Assistant County Attorney Richard Berl, that indicated no re-hearing was required.

Berl on Monday acknowledged that the county’s on-site notice of the hearing on the application had been posted on an adjacent property, where there is a “run-down dwelling, as opposed to the Arby’s and gas station” where the 100-foot-tall monopole tower is proposed to be built.

But he told board members he didn’t believe there was a problem with the county’s notification to property owners within 200 feet of the site, as a subsection of the rules on noticing state specifically that the county’s failure to comply with the rule is not considered a defect in the requirements for a public hearing of the sort that would require re-opening a hearing or holding a new one.

Attorney Rob Whitsil, who represents the property owners of Sea Pines Village (SPV), obtained a list of the county’s notifications on the application, which SPV property owner and HOA president Gary Bogossian said included just 10 nearby property owners.

None of SPV’s 45 property owners were notified, including state Rep. Gerald Hocker, according to Bogossian, while owners of several neighboring commercial properties were among those notified. Other property owners within that 200-foot radius, some of whom reside inside Bethany Beach town limits, were also not notified.

Berl also told the board he found no fault with the county’s legal advertising of the hearing, which opponents had complained about as having one of two legal notices published in the Sussex Countian, which they said is not well read in the area. He said the advertisements met code requirements.

Board operates under separate rules, discretionary notice

Also on Monday, Berl acknowledged that there are some conflicts between rules that could be seen to govern the operations of the county’s Board of Adjustments. While requirements for a public hearing and notice are clearly set out for the county’s Planning and Zoning Commission, under whose auspices some consider the BoA to operate, Berl said that section of code – Title 9, Chapter 68-12 – does not mention the BoA.

Instead, Berl said, Chapter 69, on zoning, is the area for the board’s rules. He said Chapter 69-15 provides for county government to create rules for the board and for the board to make its own supplemental rules. Under those rules, Berl said, the county is required to publish notice of a public hearing before the board at least 15 days before the hearing, in a newspaper of “general circulation.” He said the county had met that requirement.

Regarding the on-site posting on the incorrect property, Berl said the rules say the board “may cause the date, time and nature of the hearing to be posted conspicuously on the property, consistent with the rules of board.” That, Berl advised the board, meant the county was not required to make the posting at all. On-site posting is, instead, he said, a discretionary issue with the county.

“If the county opts to post it, does it have to be proper?” he asked rhetorically of the board. “Does an error, as in this case, trigger need to re-hear the case?”

Berl said the posting on the property is designed to allow the public to contact the county for more information. If an error is made, he asked, is it “such that it imposed an unfairness, or is it an error so minor in nature that it need not trigger a re-hearing?”

Board member John Mills made it clear on Monday that he considered the county’s noticing procedures in the case to have been sufficient, even though most of those who testified in opposition to the tower on Sept. 21 said they had not learned about the hearing through the legal advertising or the errant on-site posting but from a front-page story in the Coastal Point on Sept. 18 or from others who had read it.

“If folks were not properly notified, then why did folks show up anyways?” Mills asked. “In my opinion, proper notice was given. We published it as we always do. … Had there not been any opposition, then I could believe it had an effect.”

Board declines to hear arguments from opponents

Whitsil interjected on Monday that he felt it would be appropriate for the board to hear “some very brief oral arguments on the issue” of the notice. He said he disagreed with Berl’s legal opinion on the issue.

“It might help board members understand the differing legal opinions in this case,” he said after waiting to address the board for nearly three hours. “It should be the board’s decision not to allow oral arguments. This is a very important case, and a simple decision by you could eliminate all appellate arguments for due-process reasons.”

“Do you want to accept a legal opinion by someone other than the board’s attorney? That’s what it comes down to,” Berl countered.

The board then declined to hear those oral arguments from the opponents, and they proceeded to unanimously vote not to re-hear the case or to re-open the record. Mills said he believed the noticing had been properly done.

The issue of the re-hearing requests addressed, Mills said the questioning on the notice over the past couple of weeks “has distracted me from what we heard in the case. There was a lot of content. I’d appreciate more time in digesting and thinking it through. It isn’t a case to be taken lightly,” he said, moving to table a decision on the application until the board’s Nov. 2 meeting.

The board voted to do so.

Opponents vow to fight on to the finish

Speaking to the Coastal Point on Tuesday, Oct. 20, Bogossian lamented the board’s decision to not permit further input from the tower’s opponents.

“We’d gotten a copy of response from AT&T’s lawyer, Pam Scott. She tried to debunk what we were saying, and we sent a letter countering the arguments she put forth,” he said. “They decided to ignore that and just went on Berl’s recommendation only.”

While the decision on Monday may have put an end to the opponents’ direct efforts with the board, Bogossian said their fight is far from over. In the immediate future, they plan to continue their letter-writing campaign, reaching out to county and state officials, and perhaps get the word out through advertisements.

“We can only hope that it will have some positive effect, but we’re not giving up,” he said. “We’re not going to go away. We’re going to use everything at our disposal to go down every legal avenue before it runs its course. We’re determined.”

Bogossian pointed to his united group of property owners in Sea Pines Village – 45 owners of 46 units. “Every single one of us is going to be affected by this, in no uncertain way,” he said. “It’s a threat to us. It’s not like somebody putting another set of town homes next door. This is something that is extremely unusual and is going to be very detrimental.

“All 45 of us feel that way,” he emphasized. “We voted unanimously at the meeting of our home owners association to oppose it. It’s not like it’s a few people. This is a direct challenge to our life there.”

Bogossian said the group is also working on possible legal action it could take if the board decides to approve the tower. That could include a formal petition for a re-hearing on the grounds that the submitted evidence was flawed.

Should the board vote to approve the tower, he said, the group is also prepared to seek a re-hearing mandated by the courts. They could do that within 30 days of the board’s written decision in the case being issued.

The group, and their attorneys, say they have multiple objections to the way the case has played out.

Bogossian, an architect who has sat on some boards where he lives, said the “de minimus requirement” Berl cited on the issue of notices was “inserted so, if in the course of normal business, they notify 20 people and one person doesn’t get it, it’s not enough to say, ‘I didn’t get it.’”

“This wasn’t anything like that. We have 46 properties, plus a handful in Bethany Beach, within 200 feet, and none of us were notified. The county doesn’t dispute that,” he emphasized.

“Our argument is: ‘You sent it to a quarter of the people and omitted three-quarters of the people. That’s not de minimus, and it’s not the spirit of this part of the paragraph.’”

The accuracy of the testimony given on Sept. 21 is also at issue for the group.

“We feel, as an HOA, that there were significant misrepresentations by the applicants at the hearing,” Bogossian said, “things we would address in a rehearing or in a future appeal.”

Among those issues, the failure to show any residences on the site plan for the project, which shows property lines only. He said AT&T also failed to show “what we commonly call the ‘drop zone’ of the antenna. It’s supposed to be on there. So, if it falls, where does it go?

“If it falls to the south, it will actually hit two of our units, and it isn’t shown on their plan. … I think I know why they didn’t show it. It would have shown people it would fall on their houses.”

Bogossian also cited issues with the information presented on property values, which AT&T’s contracted expert said would not be negatively impacted by the tower.

“He didn’t address rental income,” noted Bogossian. “Many of our properties are rentals for the summer. I think we can easily show that, if the tower was built, we would have a significant drop in rental income, which would affect property values.”

Bogossian said the group would also like to point out the predominantly residential setting of the area compared to the west side of Route 1, as well as to delve into the questions of whether the antenna arrays might impact residents’ health.

“We’re all going to try to work together on this,” Bogossian added of Bethany officials and Bethany Beach Landowners Association members, as well as the SPB HOA and other opponents. “So, we will be a united front.”

He said the group is also trying to figure out the role of Sea Colony in perhaps being able to offer an alternative site for the antenna array on its high-rises or for the tower on property near its maintenance facility.

Bogossian acknowledged on Monday that the group’s efforts to pressure the board on the application now that the record is closed are not likely to officially impact the eventual vote on the application.

“But do I hope? Yeah, I do,” he said. “It’s like when the defense attorney says something that he knows is going to be objected to in front of the jury.”

“It’s hard to believe that any board that really wants to do justice would knowingly, after seven or eight people came to the meeting and said they didn’t know about this, would knowingly keep the case closed,” he added. “Why? Are they just sticking to their rules, or is there something else happening here?”