County BoA denies AT&T request for permanent tower

Date Published: 
January 31, 2014

The Sussex County Board of Adjustment has once again denied a special-use exception application for a telecommunication tower submitted by AT&T for property on Route 1, just south of Bethany Beach town limits — this time by a vote of 3 to 2.

The application requested a variance to erect the permanent tower that had first been requested by AT&T in 2009. That tower would take the place of the temporary tower the company erected on the site after an initial approval from that first hearing. It has remained in place since then, even though that approval was subsequently reversed in court appeals in 2010.

The saga continued on into 2011, when the BoA unanimously rejected a new application from AT&T, and then into 2012, when AT&T argued successfully in an appeal in decided in mid-2013 that the BoA’s rejection had been legally flawed — leading to AT&T taking yet another fresh swing at getting the special-use exception earlier this year.

On Jan. 27, Board Member Norman Rickard said both the applicant and those opposed had presented their cases well; however, he said, he believed the tower would substantially adversely affect the neighboring properties. He added that AT&T had not convinced him that there was a need for the tower in the future.

“They haven’t convinced me of that — that this is something that’s really going to be a need in the future.”

“In my opinion, it has substantially adversely affected the use of their property,” Board Member John Mills said of the neighboring property owners in Sea Pines Village, again making use of the word “substantially,” which had been omitted from the wording of the board’s 2011 decision and was a focus of AT&T’s successful appeal.

“I’d be inclined to deny it. All other things being equal… these people have not enjoyed their property. I truly believe that’s their feeling,” Mills said.

Board Member E. Brent Workman said he felt the application was seeing opposition due to property owners wanting the service without wanting the tower.

“Everybody wants this communication, but not in their back yard,” he said. “It’s been there. It hasn’t done anything. They’re still renting properties out. They’re still going to the pool, still going to the beach. I think the tower that’s there now, there’s nothing wrong with it.”

In contrast, Mills said that, after some 10 hours of testimony, he believed it had been proven that property owners adjacent to the tower had already been adversely impacted by the temporary tower, which is 20 feet shorter than the requested permanent tower, and that that would continue if a permanent tower were to be erected there.

“The opposition has spent $170,000 or more,” he noted, speaking to the import of the issue to them.

“I think it’s going to continue to substantially adversely affect them,” said Rickard.

The board also dealt with the question of when the use of a cell tower becomes a necessity. Comparing them to power lines and utility poles, Workman said he had viewed the application with the idea that such a tower is necessary in this day and age.

Chairman Dale Callaway said he was voting against the application because he did not believe the applicant had proved a need to erect the permanent tower.

“I feel the opposition indicated that there was cell coverage available and it was adequate for that area, and the tower was not necessarily needed.”

Rickard, Mills and Callaway voted to deny the application, while Workman and Jeffrey Hudson voted to approve it.

Sussex County had previously notified AT&T that the temporary tower needed to be removed, after the board voted unanimously to reject the second application, but it has remained in place pending appeals and this latest application.