IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
AT&T, )
)
)
Appellant, )
)
v. ) C.A. No. S14A-04-001 MJB
)
)
SUSSEX COUNTY BOARD OF )
ADJUSTMENT )
)
)
Appellee. )
Submitted: January 30, 2015
Decided: April 30, 2015
Upon Appellant’s Appeal from the Sussex County Board of Adjustment, MODIFIED.
OPINION
Richard A. Forsten, Esq. and Michael A. DeNote, Esq., Saul Ewing LLP, 222 Delaware Avenue,
Suite 1200, Wilmington, Delaware 19899, Attorneys for Appellant.
James P. Sharp. Esq., Moore & Rutt, P.A., 122 West Market Street, Georgetown, Delaware
19947, Attorney for Appellee.
BRADY, J.
1
I. INTRODUCTION
This action is an appeal of a decision made by the Sussex County Board of Adjustment
(the “Board”) denying a special use exception for Appellant AT&T (“Appellant” or “AT&T”) to
construct a permanent 100-foot telecommunications tower on a parcel of real property identified
as Sussex County Tax Map Parcel Number 1-34-17.07-191.00 (the “Property”).
Appellant argues that the Board committed reversible error in denying its application to
build the telecommunications tower. Specifically, Appellant argues that the Board neglected to
adequately consider key evidence in addressing the issues of (1) whether there was a
demonstrated need for the tower, and (2) the impact of the tower on neighboring properties.
The instant appeal was filed in Superior Court on April 9, 2014. The matter was
reassigned to this judge in November 2014. On January 12, 2015, the Court held an office
conference with the parties to discuss the Court’s concerns about the inadequacy of the Board’s
written decision. The Court received transcripts of the office conference on January 30, 2015,
and the matter was taken under consideration.
The Court finds that the Board unreasonably concluded that there was no need for the
proposed tower and that the proposed tower would have a substantial adverse effect on the use of
neighboring property. For the reasons given below, the Court MODIFIES the decision of the
Board of Adjustment and GRANTS Appellant’s application for a special use exception to
construct the permanent 100-foot tower.
2
II. FACTS
A. Background and Procedural History
Sussex County Code requires that a “special use” exemption be granted before a
telecommunications tower can be constructed within 500 feet of a residential zone. 1 Once the
other requirements for a telecommunications pole are met, 2 requirements that include
demonstrating need, the special use exemption is to be granted unless the Board finds that the
exemption will have a substantial negative effect on the use of neighboring property. 3 The
subject Property is located at 32919 Coastal Highway (Route 1), just outside of Bethany Beach.
Property is located on the east side of Route 1 with frontage on Route 1. Property currently
contains a combination Arby’s fast food restaurant and BP gas station. There is a water retention
pond on the back of Property. Immediately adjacent to Property is an undeveloped parcel to the
north, a furniture store to the south, and the Sea Pines Condominium community (“Sea Pines”),
consisting of approximately 46 units, to the east and south. It is undisputed that the Property is
within 500 feet of a residential zone.
On September 24, 2013, Appellant filed an application with the Board for a special use
exemption to construct a 100-foot telecommunications tower on Property. Two similar
applications had previously been filed by Appellant and its predecessor (for simplicity, called
collectively “Appellant”). Appellant filed the first of these applications in August 2009. The
Board approved the August 2009 application, but the decision was subsequently reversed on
1
Sussex Cty. C. §115-194.2(A).
2
These requirements appear in Sussex Cty. C. §115-194.2.
3
Sussex Cty. C. §115-210.
3
appeal to Superior Court because the hearing on the application had been improperly noticed. 4
Because the statute does not endow the court with the power to remand, the effect of reversal is
to require the applicant to file a new application if they wish to pursue the project. 5 After this
reversal, Appellant filed a second application with the Board. The Board denied the second
application, and Appellant appealed.
The denial of the second application was ultimately reversed by the Delaware Supreme
Court on appeal. 6 The Court found that the Board erred in requiring Appellant to demonstrate no
adverse impact on neighboring property. The Appellant need only show no substantial adverse
impact. 7 The Court held that “special use exceptions are to be granted unless the Board finds the
exception will substantially affect adversely the uses of adjacent and neighboring property.” 8
Again, because there is no remand permitted under the statute, Appellant was required to file a
new application.
During the period between the first and second applications, in June 2010, Appellant
erected an 80-foot temporary telecommunications tower on Property.
On September 24, 2013, Appellant filed its third application for a special use exemption
with the Board. On November 18, 2013, the Board held a public hearing on the application. The
hearing was continued until December 9, 2013, where the Board heard additional testimony and
evidence. At the conclusion of the public hearing, the Board announced that it would table the
application. On January 27, 2014, the Board discussed the application and voted to deny the
4
Sea Pines Village Condominium Assoc. of Owners v. Bd. of Adjustment of Sussex County, 2010 WL 8250842, *6
(Del. Super. Ct. Oct. 28, 2010).
5
9 Del. C.§ 6918(f); H.P. Layton Partnership v. Bd. of Adjustment of Sussex County, 2010 WL 2106187, *3 (Del.
Super. Ct. May 27, 2010).
6
New Cingular Wireless PCS v. Bd, of Adjustment of Sussex County, 65 A.3d 607 (Del. 2013).
7
Id. at 611.
8
Id. (internal quotation omitted).
4
special use exemption. The Board issued its written decision, denying Appellant’s third
application, on March 25, 2014. On April 9, 2014, Appellant filed the instant appeal in Superior
Court.
B. The Board’s Decision
The Board’s decision denying Appellant’s third application is comprised primarily of six
and a half pages, which contain 133 numbered propositions stating the factual background of the
claim, some of the testimony that was given at the hearing, and the procedural background of the
Board’s decision. 9 While almost all of these propositions are phrased in terms of a finding (each
proposition begins with the phrase “The Board found that…”), they are, in fact, recitations of the
testimony presented rather than conclusions of fact or law. Characteristic examples include item
7, “The Board found that David Gerk testified that the tower will ‘kill the community,’” and item
35, “The Board found that Mr. Handy testified that he looked at ten (10) sales in Sea Pines and
looked at the final sales price versus the listed sales price.” 10 The Board mentions that AT&T’s
appraiser, Leland Trice, who presented a contrary opinion, was present and sworn in; but the
Board does not address the substance of Mr. Trice’s testimony. 11 In general, the Board identifies
AT&T’s witnesses but does not describe or discuss their testimony where it contradicts that of
the opposition witnesses. 12
The final numbered statement, item 134, gives the Board’s conclusions of fact and law. 13
The Board found (a) that the proposed tower would have a substantial negative effect on the
9
Board’s March 25, 2014 Decision, Exhibit A to Docket Item 1 (“March 25 Decision”).
10
March 25 Decision at 1, 2.
11
March 25 Decision at 5.
12
March 25 Decision at 5. Paragraph 90 reads, “The Board found that Mario Calabretta, Brock Riffel, Tom Zolna,
William McCain, and Leland Trice were sworn in to testify in support of the Application on December 9, 2013.”
13
March 25 Decision at 7.
5
surrounding properties and (b) that Applicant had not demonstrated the need for the proposed
tower. 14 Concerning the negative impact of the tower, the Board found that the proposed tower
“substantially affects adversely the uses of adjacent and neighboring properties.” 15 The Board
based this conclusion on “[e]vidence and testimony from neighbors [that] confirm[s] that the
temporary tower has substantially affected adversely the use and enjoyment of neighboring and
adjacent properties and that the proposed tower will do the same.” 16 Concerning need, the Board
found that, having “weighed the evidence[,]… Applicant failed to demonstrate that the proposed
tower was needed.” 17 The Board reasoned that “Applicant’s own website promotes that the
Applicant has the best coverage[,] which means that the signal ‘should be sufficient for most in-
building coverage’ in the area.” 18 The Board found “persuasive” the testimony of those
opposing the application who indicated that “cell phone coverage is available and adequate in the
area surrounding the tower.” 19
III. PARTIES’ CONTENTIONS
A. Appellant AT&T’s Contentions
Appellant argues that the Board’s decision is “not supported by substantial evidence.”20
Specifically, Appellant argues that the Board lacked substantial evidence for both of its
findings—(a) that the proposed tower would substantially affect the neighboring properties, and
14
March 25 Decision at 7.
15
March 25 Decision at 7.
16
March 25 Decision at 7. The Board earlier cites the testimony of Mr. Miller, a Sea Pines condominium owner,
regarding the claims made on Appellant’s website. March 25 Decision at 4, ¶ 62.
17
March 25 Decision at 7.
18
March 25 Decision at 7.
19
March 25 Decision at 7.
20
Appellant’s Opening Brief, Item 9 (“Opening Brief”) at 2.
6
(b) that Appellant failed to demonstrate the need for the proposed tower. 21 Appellant argues that
this Court has the power, under 9 Del. C. §6918(f), to “reverse or affirm, wholly or partly,
or…modify” the decision of the Board. 22 Appellant asks this Court to reverse the Board’s
decision and to order the special use exception granted so that Appellant may build the proposed
tower. 23
i. Appellant argues that the tower does not substantially affect use
Appellant maintains that the current presence of the temporary tower provides good
evidence of what the effects of a similar permanent structure would be. First, Appellant
emphasizes the language of the Sussex County Code, which requires that a special use
exemption shall not “substantially affect adversely the uses of adjacent and neighboring
property.” 24 Appellant argues that, while many residents testified that they do not like the
temporary tower or the proposed tower, there is no evidence in the record that residents’ use of
their property has been, or will be, substantially affected. 25 In the words of Appellant, “[n]o one
testified that the temporary tower has prevented them from parking their cars, using the pool,
using their decks, or otherwise interfered in any meaningful way with the use of their
property.” 26
Furthermore, Appellant argues that the telecommunications tower is consistent with the
use and general character of the surrounding area. 27 “The community backs up to an Arby’s fast
food restaurant with a drive-thru window that is open late at night. The Arby’s includes a gas
21
Opening Brief at 17.
22
Opening Brief at 23.
23
Opening Brief at 23-24.
24
Opening Brief at 17 (citing Sussex Cty. C. §115-210) (emphasis added).
25
Opening Brief at 17.
26
Opening Brief at 18 (emphasis in original).
27
Opening Brief at 18.
7
station. There is security lighting for the combination Arby’s/gas station. There is a furniture
store adjacent to part of the community. There is a seafood restaurant, with the smell of crabs,
and a hotel. There are fifty-foot utility lines running on the same side of the street as the Sea
Pines community and much closer to units than the proposed tower.” 28 In short, Appellant
concludes, “this is precisely the type of setting where a cell tower will have no adverse affects
because it is just another part of the crowded resort/urban landscape.” 29
Appellant acknowledges that many of the condominium units in Sea Pines are used as
vacation rentals. Hence, the use of these properties may be substantially affected if rentals are
substantially affected. 30 However, Appellant argues that there is no evidence that rentals have
been impacted by the present temporary tower. Appellant cites the testimony before the Board
of William McCain, a certified general appraiser. 31 Mr. McCain testified that in 2011, after the
erection of the temporary tower, “the rental rates in Sea Pines Village were very comparable to
other rental rates of similar units in the Bethany area.” 32 Appellant also cites Mr. McCain’s
testimony concerning online comments posted by vacation renters of Sea Pines units. 33 Mr.
McCain testified that he reviewed 59 online comments from people who had rented units in Sea
Pines. 34 According to Mr. McCain, renters complained about various annoyances including the
condition of some of the units, the smells from the crab house, and the views of the gas station;
but “not one” mentioned the telecommunications tower. 35
28
Opening Brief at 18.
29
Opening Brief at 18. Maps and photographs of the area depicting these features are found in the Record at Tabs 3,
16, and 28, as well as Exhibits attached to the 2013 Trice Report.
30
Opening Brief at 18.
31
Transcript of November 18, 2013 Board Meeting at 107.
32
Transcript of November 18, 2013 Board Meeting at 107.
33
Transcript of December 9, 2013 Board Meeting at 61-62.
34
Transcript of December 9, 2013 Board Meeting at 61.
35
Transcript of December 9, 2013 Board Meeting at 61-62.
8
Appellant also cites testimony from two Sea Pines unit owners, who both testified that
they have still been able to rent their units since the construction of the temporary tower. 36
Appellant acknowledges that the owners did express concern that, while they are able to rent
their units, they do not see repeat renters. 37 However, Appellant argues that there is no good
evidence that the lack of repeat renters is due to the temporary tower; and, even if it were, the use
of the property is still not “substantially effected” as the units are still rented out every year even
if not by repeat renters. 38
Finally, Appellant argues that there has been no demonstrated impact on property value
more generally. 39 Appellant cites the findings of Leland Trice, an appraiser who plotted sales in
the general Bethany Beach market, as well as sales in the Sea Pines community, both before and
after erection of the temporary tower. 40 Mr. Trice found that prices of units at Sea Pines tracked
the market. 41 Appellant notes that the other appraiser, Mr. McCain, came to a similar
conclusion. 42 Appellant criticizes the methodology of the tower opponents’ expert, Randall
Handy, who presented a report comparing list prices to selling prices of units in Sea Pines.43 Mr.
Handy concluded, based on discrepancies between listing prices and selling prices, that the
temporary tower had negatively impacted property values. 44 Appellant argues that this data is
36
Transcript of November 18, 2013 Board Meeting at 226-27; Transcript of December 9, 2013 Board Meeting at
137.
37
Opening Brief at 19.
38
Opening Brief at 19. Appellant points out that one of the two owners who complained about the lack of repeat
renters owns a units that looks out directly over the Arby’s/gas station. While this owner attributes the lack of repeat
renters to the telecommunications tower, Appellant argues that this could easily be due to any number of factors,
including the view of the Arby’s/gas station or the smell of crabs from the restaurant nearby.
39
Opening Brief at 19.
40
Transcript of November 18, 2013 Board Meeting at 94-97.
41
Report of Leland Trice, Exhibit N to Docket Item 9 (“Trice Report”) at 4.
42
Transcript of November 18, 2013 Board Meeting at 109.
43
Transcript of November 18, 2013 Board Meeting at 188.
44
Transcript of November 18, 2013 Board Meeting at 191-192.
9
misleading as “[l]isting price provides no basis for determining a property’s fair market value
and is not a generally-accepted method for valuation.” 45
ii. Appellant argues that Appellant has demonstrated need
Appellant argues that the Board’s conclusion that the proposed tower is not needed is not
supported by the evidence in the record. Appellant acknowledges that various opponents of the
tower testified that the cellular phone service is currently adequate in the area 46 and that AT&T’s
coverage maps indicate adequate coverage in the local area. 47 However, Appellant maintains
that coverage is only currently adequate due to the presence of the temporary tower, which the
permanent tower would replace. 48 This argument was raised before the Board. 49
Appellant also points to testimony it presented to the Board regarding the volume of calls
handled by the temporary tower and the likely effects of removing the temporary tower. 50
Appellant presented data showing that the temporary tower handled an average of 4,400 calls per
day in 2013, and that a vast majority of these calls occurred during the summer, when the tower
handled roughly 10,000 calls per day. 51 Appellant’s expert, Brock Riffel, who designs and
evaluates telecommunications towers for a living, testified that, without the current or proposed
tower, only 20 percent of these calls would go through; and, during peak summer weekends, the
45
Opening Brief at 21 (citing various cases outside Delaware including Farr West Investments v. Topaz Marketing,
L.P., 220 P.3d 1091, 1095 (Idaho 2009)).
46
Transcript of November 18, 2013 Board Meeting at 271.
47
Transcript of November 18, 2013 Board Meeting at 244, 255.
48
Opening Brief at 22.
49
Transcript of December 9 Board Meeting at 30.
50
Opening Brief at 23 (citing Transcript of November 18, 2013 Board Meeting at 33-40).
51
Transcript of November 18, 2013 Board Meeting at 34-35.
10
percentage would drop as low as 5-10 percent. 52 Appellant argues that failure rates of 10 percent
or lower constitute “unreliable service” and “a gap in coverage.” 53
Appellant concludes that it has presented strong evidence that the proposed tower is
needed and that the Board erred in relying on the testimony that coverage is currently adequate,
as coverage is only adequate due to the existence of the temporary tower that the proposed tower
would replace.
B. Appellee Board’s Contentions
The Board contends that its decision was supported by substantial evidence and free from
legal error. Specifically, the Board argues that there was sufficient evidence that (a) the
proposed tower would have a substantial adverse effect on the use of the neighboring property,
and (b) the need for the proposed tower was not adequately demonstrated. 54 The Board argues
that it applied the correct legal standard to these facts in denying the application on the basis that
“1) the use substantially affects adversely the uses of adjacent and neighboring properties, and 2)
the Applicant failed to demonstrate that the proposed tower was needed.” 55 The Board cites
Sussex County zoning code §115-210(A) for the proposition that a special use exception may
only be granted if the Board finds that the special exception “will not substantially effect
adversely the uses of the adjacent and neighboring property.” 56 The Board also states that the
zoning code contains “a number of other technical requirements” including “the requirement to
52
Transcript of November 18, 2013 Board Meeting at 38-40.
53
Opening Brief at 23 (citing American Cellular Network v. Upper Dublin Township, 203 F.Supp.2d 383, 394 (E.D.
Pa. 2002)).
54
Answering Brief at 21, 26.
55
Answering Brief at 20 (internal quotations omitted).
56
Answering Brief at 20 (citing Sussex Cty. C.§115-210(A)).
11
submit appropriate ‘documentation substantiating the need for such tower at the proposed
location.’” 57
i. Appellee argues that there is substantial evidence of “substantial adverse effects”
The Board argues that there is adequate evidence based on which it concluded that the
proposed tower would have a substantial negative effect on the surrounding properties. The
Board cites the testimony of numerous residents and experts, who testified that the proposed
tower presents a safety hazard, nuisance, and aesthetic blight that drives down property values
and rents. 58
Concerning safety, including the concern of flooding caused by the proposed tower’s
proximity to a water retention pond, the Board cites the testimony of Sea Pines owners David
Gerk, Barbara Gerk, Ron Gerk, Dana Gerk, and John Hefferly, as well as the testimony of Cathy
Vingazo, an area resident and leader of a consortium of homeowners groups. 59 In addition to
being a Sea Pines owner, David Gerk is also a mechanical engineer and holds a law degree. 60
Ron Gerk and John Hefferly both testified that the base of the proposed tower would be located
within the retention pond. 61 David Gerk testified that the proposed tower represents a real threat
based on its location in a retention pond, next to a gas station, and two blocks from the ocean.62
David Gerk and Barbara Gerk testified that the temporary tower has already created flooding
issues. 63 Ron Gerk testified that plans for the permanent tower indicate that the foundation would
be fifteen feet into the existing retention pond and that the proposed site is actually only one
57
Answering Brief at 20 (citing Sussex Cty. C. §115-194.2(D)).
58
Answering Brief at 22-24.
59
Answering Brief at 22-24.
60
March 25 Decision at 1.
61
Answering Brief at 22.
62
Answering Brief at 22,
63
Answering Brief at 23.
12
block from the ocean. 64 The Board also cites the opinion of Dr. Jeremy Raines, a radiofrequency
antenna and electromagnetic engineer, who expressed concern with the proposed tower’s
location in a retention pond and in close proximity to a gas station. 65
Concerning aesthetics and nuisance, the Board cites testimony that the current temporary
tower significantly impacts residents’ use and enjoyment of their property in the Sea Pines resort
community. 66 One owner described the temporary tower as “loom[ing] over [his] backyard.” 67
The same owner said called the “bright red lights” of the temporary tower a “visible blight” in
the night and day. 68 The Board argues that “the homeowners’ testimony as to quality-of-life
issues may serve as evidence of a negative effect on neighboring property use,” and the “Board
may properly rely upon such evidence in denying an application for a special use exception.” 69
Concerning property values and rents, the Board cites the appraisal report from Mr.
Handy, as well as the opinions of local realtors, Mr. Cox and Ms. York. 70 Mr. Cox and Ms.
York testified that they had personally witnessed potential buyers lose interest in Sea Pines after
seeing the temporary tower. 71 Mr. Cox also testified that sales prices of Sea Pines units near the
temporary tower were lower than sales prices of other units in the community. 72 Mr. Gerk and
Mr. Cox also testified that the temporary tower has a significant impact on vacation rentals of the
Sea Pines units. 73
64
Answering Brief at 22.
65
Answering Brief at 25 (citing Report of Dr. Raines at 7).
66
Answering Brief at 24.
67
Answering Brief at 24 (citing Affidavit of David Gerk).
68
Answering Brief at 24 (citing Affidavit of David Gerk).
69
Answering Brief at 24-25 (citing New Cingular Wireless PCS v. Bd, of Adjustment of Sussex County, 2012 WL
5578866, rev’d on other grounds, 65 A.3d 607 (Del. 2013)).
70
Answering Brief at 25.
71
Answering Brief at 25 (citing March 25 Decision at 3).
72
Answering Brief at 26 (citing March 25 Decision at 3).
73
Answering Brief at 26 (citing March 25 Decision at 2-3).
13
The Board concludes that, while there was testimony presented on both sides, the Board
acted within the bounds of reason in choosing to adopt the view of the tower opponents
concerning the negative impact of the proposed tower. “Although AT&T argues that its own
witnesses were more persuasive on the question of the impact of the Tower on neighboring and
adjacent properties, the Board disagreed, and the Board had substantial evidence on which to
base its decision.” 74
ii. Appellee argues that Applicant failed to demonstrate need
The Board argues that the burden is on the applicant to demonstrate need and that the
Board acted reasonably in finding that Applicant did not meet this burden. The Board contends
that the zoning code requires the applicant to demonstrate “that there are no existing structures
within a two-mile radius of the proposed location available for collocation and that there is a
need for such a tower at the proposed location.” 75 The Board argues that Applicant failed to
make both of these required showings.
First, the Board cites the opinion of Dr. Raines, who stated that “[t]here are a large
number of existing nearby structures that serve as equally good if not preferable locations to
place antennas from a coverage perspective[,] including a number of existing and available
cellular sites.” 76 These sites include “a large number of utility poles,” which “are required under
federal law to be made available to the applicant.” 77 The Board also points out that the tower
opposition submitted photographs of a 60-foot utility pole located .38 miles from Property and
that these pictures appeared to show that the pole was being used by AT&T for
74
Answering Brief at 26.
75
Answering Brief at 3 (citing Sussex Cty. C. §115-194.2(C)) (internal quotations omitted).
76
Answering Brief at 10 (quoting Report of Dr. Raines at 6-7).
77
Answering Brief at 10 (quoting Report of Dr. Raines at 6-7).
14
telecommunications. 78 AT&T testified that the sticker identifying the pole as being used by
AT&T was in error and that the pole was in fact being used by competitor T-Mobile.79
Nonetheless, regardless of whether the pole was used by AT&T or a competitor, the Board
argues that the use of the pole for telecommunications demonstrates the availability of
alternatives to the proposed tower. 80 The Board also argues that AT&T failed to demonstrate
why the 100-foot proposed tower is needed, when Applicant admits that it has achieved 93-84%
reliability with the 80-foot temporary tower. 81
Second, even putting aside the availability of alternatives to the proposed tower, the
Board argues that Applicant has failed to demonstrate the need for additional coverage at all. 82
The Board points out that no witness testified that AT&T had been warned or sanctioned by the
Federal Communications Commission (“FCC”) for providing inadequate coverage before the
construction of the temporary tower. 83 The Board argues that it is reasonable to expect that
AT&T would have received a warning or violation notice had coverage truly been inadequate. 84
C. Appellant AT&T’s Response
In its Reply, Appellant argues that the evidence cited by the Board in its Answering Brief
is not “substantial” and hence does not meet the standard that the Board’s decision must be
supported by “substantial evidence.” 85 Appellant further argues that most of the evidence on
which the Board relies in the Answering Brief was not cited in the Board’s decision. 86 Appellant
78
Answering Brief at 12 (citing Exhibit E to Answering Brief)
79
Answering Brief at 12 (citing Transcript of December 9 Board Meeting at 38-39).
80
Answering Brief at 12-13.
81
Answering Brief at 6.
82
Answering Brief at 6.
83
Answering Brief at 6.
84
Answering Brief at 6.
85
Reply Brief at 3-4.
86
Reply Brief at 1, 4.
15
suggests that this is an improper attempt by the Board to justify its decision after the fact.
Putting aside whether the reasons given in the Answering Brief are different from the reasons on
the basis of which the Board made its decision, Appellant argues that these reasons do not
withstand scrutiny. 87
i. Appellant addresses Appellee’s arguments concerning substantial interference
On the topic of whether the proposed tower would substantially interfere with residents’
use of their property, Appellant separates and discusses the five concerns noted by the Board in
its Answering Brief: general safety, aesthetics, flooding, nuisance, and effect on property values
and rents. 88
Concerning the alleged safety hazard, Appellant argues that the opinions were
unsubstantiated by data (as in the case of Mr. Gerk’s claims about hurricane risk) 89 or simply
based on incorrect facts (as in the case of Mr. Gerk’s claim that the proposed tower would be
located in the water retention pond). 90 Appellant suggests that many of the hazards pointed out
by the tower opponents are simply those that accompany any telecommunications tower; hence,
if these were accepted as reasons not to build the proposed tower, no telecommunications towers
would ever be built. 91 Appellant also argues that the safety risks of telecommunications towers
are already addressed in the zoning code, which only requires that a tower be set back by one-
third of its height (whereas the proposed tower would be set back in excess of its entire height)
87
Reply Brief at 4.
88
Reply Brief at 5.
89
Reply Brief at 6 (citing Transcript of December 9 Board Meeting at 22-28). Appellant contends that Mr. Gerk’s
testimony that the proposed tower poses a hurricane risk was unsupported the data that the proposed tower would be
built to all applicable safety codes, codes that are “designed to take into account the extreme weather events which
occur on the east coast of the mid-atlantic [sic] region.”
90
Reply Brief at 5 (citing Transcript of December 9 Board Meeting at 22-23).
91
Reply Brief at 6.
16
from the residential community. 92 Concerning flooding, Appellant contends that the testimony
claiming that the temporary tower caused flooding is simply wrong. 93 Appellant argues that at
least one Board member acknowledged that the increase in flooding was due to the weather
rather than the tower. 94
Concerning aesthetics and nuisance, Appellant argues that the testimony of the residents
is not sufficient evidence of a substantial negative effect. Again Appellant argues that if mere
resident disapproval were sufficient to defeat a telecommunications tower proposal, then this
would rule out a telecommunications tower near almost any residential area. 95 Further,
Appellant denies that any aesthetic effects of the tower substantially affect use or enjoyment and
argues that the tower is in keeping with the general character of the neighborhood. 96 Appellant
asks, “How does seeing the tower from the pool adversely affect the use of the pool? The pool is
actually much closer to power lines and telephone lines and a hotel across the street.” 97
Appellant also points out that while Sussex County zoning code mentions aesthetics when
considering whether or not to grant variances, the code does not mention aesthetics when it
comes to cell towers and special use permits. 98 Appellant argues that this omission is
noteworthy, especially since other jurisdictions like New Castle County do address aesthetics in
the cell tower permitting process by requiring towers to have some sort of camouflage. 99
Appellant argues that at least two federal courts have rejected aesthetics as a basis to deny a cell
92
Reply Brief at 6-7 (citing Sussex Cty. C. § 115-194.2(F)).
93
Reply Brief at 8-9.
94
Reply Brief at 9 (citing Transcript of January 27 Board Meeting at 22-23).
95
Reply Brief at 7.
96
Reply Brief at 7.
97
Reply Brief at 7.
98
Reply Brief at 8.
99
Reply Brief at 8 (citing New Castle Cty. C. § 40.03.326(E)).
17
tower proposal. 100 Appellant contends that residents’ claims of nuisance ignore much more
obtrusive features of the area, such as the Arby’s drive-thru, the smell of crabs from the seafood
restaurant, and other utility poles and lights in the vicinity. 101
Concerning the alleged effect on property values and rents, Appellant argues that the
testimony of owners like Mr. Gerk is “simply wrong” and “contrary to the actual market data
provided by AT&T.” 102 Appellant similarly criticizes the opinions of Handy, Cox, and York as
unsupported by the actual data. For example, Appellant contends that the data on which Mr. Cox
based his opinion that units near the tower sold for less was seriously flawed. First, Mr. Cox
extrapolated from an inadequate sample size of only four sales. 103 Second, Mr. Cox failed to
take into account the fact that the units near the tower that he considered were one-bedroom units
and the unit farther away (with which he compared them) was a two-bedroom unit. 104 Appellant
argues that the reasonable explanation for why the units near the tower sold for less than the unit
farther away was the difference in number of bedrooms, not the location. 105 Appellant contends
that it is well-established that expert opinion that is not supported by underlying evidence should
not be given any weight. 106
100
Reply Brief at 8 (citing Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 495-96 (2d Cir. 1999);
Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Township, 20 F.Supp. 2d 875, 880 (E.D. Pa. 1998)).
101
Reply Brief at 9.
102
Reply Brief at 10.
103
Reply Brief at 11.
104
Reply Brief at 11.
105
Reply Brief at 11.
106
Reply Brief at 11 (citing D.R.E. 702; Sturgis v. Bayside Health Ass’n Chartered, 942 A.2d 579 (Del. 2007)). The
Court notes, however, that the Rules of Evidence do not apply to the Board of Adjustment. See, e.g., New Castle
Dev. Co. v. New Castle County Board of Adjustment, 1996 WL 659481, *4 (Del. Super. Ct. Aug 13, 1996).
18
ii. Appellant addresses Appellee’s arguments concerning the need for the proposed tower
Concerning the issue of need for the tower, Appellant argues that the Board has changed
its argument in the Answering Brief from the argument in the Decision. 107 Further, Appellant
argues that all of the Board’s arguments concerning need, past and present, are without merit.
Appellant contends that in the Decision, the Board concluded that the tower is not needed
because the coverage is currently adequate. 108 Appellant reiterates its earlier criticism of this
argument; Appellant argues that the strength of current coverage is due to the temporary tower
that the proposed tower would replace. 109
Appellant addresses what it describes as the Board’s four new arguments: (1) that
Appellant only demonstrated need for an 80-foot tower, but the proposed tower is 100 feet; (2)
that there were alternate locations available for the tower; (3) that Appellant did not present
evidence of complaints of inadequate service prior to the construction of the temporary tower;
and (4) that there is no evidence that the area is not covered by other telecommunications
providers. 110 Appellant argues that all of these arguments are equally baseless.
First, Appellant argues that it is unreasonable to require an applicant to demonstrate that a
tower of a specific height is needed. Appellant argues that “the Board can’t simply say after the
fact that it is denying a 100-foot tower because sufficient evidence wasn’t provided that a
slightly shorter tower [would not] satisfy the need. Where does it end? Can the Board deny an
applicant for not proving a 90-foot tower [would not] work, or a 95-foot tower?” 111 Second,
Appellant contends that the evidence of alternative locations does not rise to the level of
107
Reply Brief at 13.
108
Reply Brief at 13.
109
Reply Brief at 13.
110
Reply Brief at 13.
111
Reply Brief at 14.
19
“substantial evidence.” 112 Appellant argues that Dr. Raines’ assertion that AT&T’s models
“cannot possibly be accurate” is merely a conclusory opinion, unsupported by evidence or
demonstrated methodology. 113 Concerning Raines’ testimony that AT&T could use a utility pole
instead of a telecommunications tower, as is used by competitor T-Mobile, Appellant contends
that it was made clear at the hearing that this solution is not feasible due to the different
technology used by AT&T. 114
Appellant admits that evidence of complaints of lacking or inefficient service was not
presented, but argues that it had no obligation to do so. 115 Appellant contends that it addressed
the effects of removing the temporary tower and argues that this is sufficient to demonstrate
need. 116 Appellant dismisses the Board’s argument that there is no significant gap in coverage
because AT&T did not demonstrate that no other cellular provider is able to provide service in
the area. Appellant contends that this argument is based on authority that is no longer good
law. 117 Appellant contends that the Federal Communication Commission declared the so-called
“one-provider rule” inconsistent with the Federal Telecommunications Act in 2009, and the
invalidity of the rule has subsequently been recognized by two Third Circuit District Courts. 118
112
Reply Brief at 15.
113
Reply Brief at 15.
114
Reply Brief at 15 (citing Transcript of December 9 Meeting at 40-41).
115
Reply Brief at 16.
116
Reply Brief at 16.
117
Reply Brief at 17 (citing Omnipoint Communications Enterprises v. Zoning Hearning Bd. of Eastown Township,
331 F.3d 386, 396 (3d Cir. 2003)).
118
Reply Brief at 17 (citing Liberty Towers, LLC v. Zoning Hearing Board of Lower Makefield, 748 F.Supp.2d 437
(E.D. Pa. 2010); Clear Wireless, LLC V. City of Wilmington, 2010 WL 3463729 (D. Del. Aug. 30, 2010)).
20
IV. LEGAL STANDARD
The standard under which a court reviews a decision of the Board of Adjustment is
deferential. 119 The Board’s decision should be disturbed only in limited circumstances. 120 So
long as the Board’s conclusions are (a) supported by “substantial evidence” 121 in the record and
(b) “free from legal error,” 122 the Board’s decision must stand—even if the court itself would
have decided otherwise. 123 Under 29 Del. C. §10142(d), the court’s review is limited to matters
of law, and the court is bound by the facts presented before the administrative board in the
instant matter. 124
Legal error alone is sufficient for reversal. “An error of law by the Board in applying the
correct legal standard for a special use exception precludes judicial review of the sufficiency of
the evidence before the Board.” 125 Hence, once the court has determined that there is no legal
error, “[t]he Court gives great deference to the Board, requiring only evidence from which an
agency could fairly and reasonably reach the conclusion that it did.”126 However, “upon a
showing of arbitrary or capricious action” by the Board, the reviewing court “may reverse or
affirm, wholly or partly, or may modify the decision brought up for review.” 127 The court may
119
29 Del. C. § 10142; Jones v. Bd. of Adjustment of Sussex County, 2007 WL 441942, *2 (Del. Super. Ct. Jan. 26,
2007).
120
Delaware Transit Corp. v. Roane, 2011 WL 3793450, *6 (Del. Super. Ct. Aug. 24, 2011).
121
See Unemployment Ins. Appeal Bd. v. Duncan, 337 A.2d 308, 309 (Del. 1975).
122
See Longobardi v. Unemploymt. Ins. Appeal Bd., 287 A.2d. 690, 692 (Del. Super. Ct. 1971), aff’d, 293 A.2d 295
(Del. 1972).
123
Delaware Transit Corp., 2011 WL 3793450 at *6.
124
See, e.g., Tenneco Oil Co. v. Department of Energy, 475 F. Supp. 299, 307 (D. Del. 1979).
125
New Cingular Wireless PCS, 65 A.3d at 612.
126
Jones, 2007 WL 441942 at *2 (internal quotation, citations omitted).
127
9 Del. C. § 6918(f).
21
not remand the case to the Board for further proceedings. 128 Reversal “vacates the decision, and
the applicant may re-apply with the proceedings before the Board beginning anew.” 129
The statutory language of 9 Del. C. § 6918(f) clearly allows for “modif[cation] of the
decision” by the court, but case law is silent on the scope of the court’s power to “modify” the
decision in the specific case of the Board of Adjustment. However, in JMB Income Properties,
the court modified a decision of the Board of Assessment Review, ordering the Board to modify
the tax assessment value of appellants’ property from $20 million to roughly $13.4 million. 130
The scope of the court’s review in JMB Income Properties was governed by 9 Del. C. §
8312(c), which contains a similar provision to that in 9 Del. C. § 6918(f), both of which permit
the court to “modify” the decision of the Board. 131 The court found the Board’s decision to use
market rent rather than contract rent in valuing the property was “unwarranted and conjectural”
given that “the preferred method for establishing an income valuation on property existing in
1983 [was] to use actual data.” 132 The court held that the Board’s failure to consider the effect of
the long-term lease in its valuation was “arbitrary and capricious.” 133 Applying the preferred
valuation method based on contract rent, the court ordered the assessment modified. 134
128
H.P. Layton Partnership v. Bd. of Adjustment of Sussex County, 2010 WL 2106187, *3 (Del. Super. Ct. May 27,
2010).
129
Riedinger v. Bd. of Adjustment of Sussex County, 201 WL 3792198, *3 (Del. Super. Ct. Sept. 29, 2010) (citing
Hellings v. City of Lewes Bd. of Adjustment, 1999 WL 624114, *3 (Del. 1999).
130
JMB Income Properties v. New Castle County Bd. of Assessment Review, 1994 WL 45336, *2 (Del. Super. Ct.
Feb. 3, 1994).
131
Id. at *2 (citing 9 Del. C. § 8312(c)).
132
Id. at *5.
133
Id.
134
Id. at *6.
22
V. DISCUSSION
Under 9 Del. C. §6917, the Sussex County Board of Adjustment has the power to “[h]ear
and decide, in accordance with the provisions of any zoning regulation, requests for special
exceptions.” Under Sussex County Code §115-194.2, a “special use” exemption is required to
construct a telecommunications tower within 500 feet of a residential zone. 135 Once an applicant
meets the other requirements under §115-194.2, including demonstrating need, 136 the special use
exemption is to be granted unless the Board finds that the exemption “will substantially affect
adversely the uses of adjacent and neighboring property.” 137
A. The Sufficiency of the Board’s Written Decision and the Record
While the court’s standard of review is deferential, it is the Board’s duty to provide the
court with a sufficient record. 138 “[W]hen making a decision, a board of adjustment must
particularize its findings of fact and conclusions of law to enable the Superior Court to perform
its function of appellate review.” 139 In order to meet this burden, “a Board may not simply make
conclusory statements, or transcribe the legal standard of review. The Board must address the
specific issues raised at the hearing and apply the law to those uniquely crafted facts.” 140 While
weak analysis is not an automatic ground for reversal, it can be evidence that the decision was
arbitrary and capricious. 141
In H.P. Layton Partnership, the court reversed the Sussex County Board of Adjustment’s
decision granting a special use exemption and an area variance for a windmill on the roof of the
135
Sussex Cty. C. §115-194.2(A).
136
Sussex Cty. C. §115-194.2(D).
137
New Cingular Wireless PCS, 65 A.3d at 612 (citing Sussex Cty. C.§115-210).
138
H.P. Layton Partnership, 2010 WL 2106187 at *4.
139
Jones, 2007 WL 441942 at *3 (internal quotation, citations omitted).
140
Id.
141
See, e.g., Riedinger v. Bd. of Adjustment of Sussex County, 2010 WL 3792198 (Del. Super. Ct. Sept. 29, 2010).
23
applicants’ property. 142 The Board’s decision “state[d] in conclusory fashion that the Board
‘believed’ that the Applicant had met the standard for a variance. It did not set forth the standard
either for a special use exception or for an area variance. It did not identify any evidence that
might meet either standard. Instead, the Board simply granted the application, finding that it
would not adversely affect the uses of neighboring properties.” 143
Like in H.P. Layton, the complete lack of analysis in the Board’s written decision in the
instant case suggests that the decision was arbitrary and capricious. Six of the seven pages
consist of repetition of testimony phrased as factual findings (each prefaced with the phrase “The
Board found…”); however, all of these are recitations of what one or another witness said, rather
than conclusions of fact or law. 144 These propositions simply describe events and testimony
contained in the record. For example, item 2 reads, “The Board found that the Office of
Planning & Zoning received a letter from the Sussex Conservation District and an email from
Angela Horning about the Application.” 145 Item 18 reads, “The Board found that David Gerk
testified that the tower adversely affects the uses and enjoyment of surrounding properties.”146
Item 27 reads, “The Board found that Dr. Raines testified that he disputes that the Applicant’s
computer models are accurate. Dr. Raines testified that it is impossible to be that precise when
the propagation path is ever changing and that predicting coverage is like predicting the
weather.” 147
In the first six pages, the Board thus recites the testimony of witnesses but provides no
analysis or evaluation of this testimony. The Board does not even indicate whether it accepts
142
H.P. Layton Partnership, 2010 WL 2106187.
143
Id. at *4.
144
March 25 Decision at 1-6.
145
March 25 Decision at 1.
146
March 25 Decision at 2.
147
March 25 Decision at 2.
24
any or all of this testimony as true. It is only in the final paragraph of the decision, item 134, on
the last page, that the Board provides what purports to be analysis. 148 But this discussion is
unhelpful in communicating the basis on which the Board made its decision. The paragraph is
composed mainly of broadly-phrased conclusory statements such as “Evidence and testimony
from neighbors confirm that the temporary tower has substantially affected adversely the use and
enjoyment of neighboring and adjacent properties and that the proposed tower will do the same”
and “The opposition presented testimony and evidence which indicates that cell phone coverage
is available and adequate in the area surrounding the tower and that the tower is unnecessary.” 149
The Board’s treatment of the specific requirements set out by Sussex County Code is
cursory. As pointed out by the parties, Sussex County Code specifically sets out a number of
requirements including need 150 and then states that the exemption should be granted when these
requirements are met unless the Board finds a substantial negative effect on the neighboring
property. 151 The Board’s final paragraph, in which it purports to provide its analysis, begins by
stating that the application “failed to meet the standards for granting a special use exception
because the use substantially affects adversely the uses and enjoyment of neighboring and
adjacent properties” and later adds that need was not demonstrated. 152 However, the Board’s
conclusion concerning need is based on clearly erroneous premises. The Board explains why it
does not find need is as follows:
The evidence demonstrates that the Applicant’s own website promotes that the
applicant has the best coverage[,] which means that the signal “should be
148
March 25 Decision at 7.
149
March 25 Decision at 7.
150
Sussex Cty. C. §115-194.2.
151
Sussex Cty. C. §115-210.
152
March 25 Decision at 7.
25
sufficient for most in-building coverage” in the area. The opposition [to the
tower] presented testimony and evidence which indicates that cell phone coverage
is available and adequate in the area surrounding the tower and that the tower is
unnecessary. The Board found this testimony and evidence persuasive. 153
This explanation rests on the erroneous assumption that the current coverage is representative of
the level of coverage that would be available without the proposed tower. The current coverage
is with the existing temporary tower, which plays a similar role to the proposed tower. The
tower opponents presented no evidence that coverage would be adequate in the absence of a
tower to refute AT&T’s prima facie showing of need. The Board clearly failed to “particularize
its findings of fact and conclusions of law” in a way that facilitates this Court’s review. 154 The
insufficiency of the written decision is prima facie evidence that the decision was arbitrary and
capricious.
The Court now considers the entire record to determine if, despite the insufficiency of the
written opinion, there was a reasonable basis for the decision. 155 It is to the evidence in the
record that the Court now turns.
B. The Need Issue
The first question is whether the Board’s finding that AT&T did not demonstrate need is
reasonable and not arbitrary or capricious. As a preliminary matter, Appellant is correct to point
153
March 25 Decision at 7.
154
Jones, 2007 WL 441942 at *3.
155
Id. at *4.
26
out that a showing of need does not require a showing that there is no other adequate cellular
provider serving the area. 156
Considering the evidence presented by both parties concerning need, the Court now finds
that the Board acted arbitrarily and capriciously in finding no need. The reasons cited in the
Board’s analysis all focus on the current adequacy of coverage, ignoring the fact that this
adequacy may be reasonably attributed to the temporary tower, which the proposed tower is
intended to replace. There is no evidence in the record that explains the tower opponents’
contention that coverage would still be adequate were the temporary tower removed and no
permanent tower erected. To the contrary, AT&T presented evidence of the volume of calls
handled by the temporary tower and presented an expert, Brock Riffel, who opined that without
the tower only 20 percent of those calls would go through. 157 Riffel’s testimony was not
addressed in the Board’s written decision, other than to say that Riffel was one of the persons
giving testimony. While deficiencies in the written decision alone are not grounds for reversal,
the Board’s statements in its written decision are evidence of arbitrariness or capriciousness
insofar as they reveal the flawed and incomplete reasoning on which the Board relied. In this
case, the Court finds that the Board acted arbitrarily and capriciously by concluding that the
proposed tower is not needed based on the fact that coverage is not currently deficient, a fact that
can be explained by the evidence of coverage provided by the temporary tower, evidence that the
Board does not cite or address.
156
Reply Brief at 17 (citing Liberty Towers, LLC v. Zoning Hearing Board of Lower Makefield, 748 F.Supp.2d 437
(E.D. Pa. 2010)); see also Clear Wireless, LLC v. City of Wilmington, 2010 WL 3463729, *2 (D. Del. Aug. 30,
2010) (explaining that, under Chevron deference, the Federal Communication Commission’s rejection of the one-
provider rule is binding on the courts).
157
Transcript of November 18, 2013 Meeting at 33-40.
27
C. The Impact Issue
The Board’s written decision does not cite any specific facts as supporting its conclusion
that the proposed tower would substantially adversely affect use and enjoyment of nearby
properties other than “evidence and testimony from neighbors” concerning the negative effects
of the current temporary tower. 158 Looking beyond the Board’s written decision to the record,
the Court finds no evidence of a substantial adverse effect on use and enjoyment. The two most
compelling arguments against the tower concern property values and aesthetics. Concerning
property values, Appellant presented the testimony of Leland Trice, who found that the sales
prices of units in Sea Pines tracked the market, 159 and William McCain, who found that the
rental rates in Sea Pines were similar before and after the erection of the temporary tower. 160 On
the other side, the tower opponents’ expert, Randall Handy, opined that units in Sea Pines were
selling for less than their list prices, 161 and realtors, Mr. Cox and Ms. York said that they had
personally witnessed potential buyers lose interest in Sea Pines after seeing the tower. 162
The Court finds methodology used by Handy was seriously flawed such that a reasonable
Board could not have credited Handy’s testimony over that of Appellant’s appraisers. Handy
compared list prices to selling prices and concluded that the tower diminished property values
based on the discrepancy between these numbers. 163 However, it is well-accepted that asking
price is not an appropriate estimate of fair market value of land. 164 The testimony of Mr. Cox
158
March 25 Decision at 7.
159
Transcript of November 18, 2013 Board Meeting at 94-97.
160
Transcript of November 18, 2013 Board Meeting at 107.
161
Transcript of November 18, 2013 Board Meeting at 191-192.
162
March 25 Decision at 3.
163
Transcript of November 18, 2013 Board Meeting at 191-192.
164
See, e.g., Farr West Investments v. Topaz Marketing, L.P., 220 P.3d at 1095 (The court agreed that “the current
listing price of the real property is not substantial and competent evidence of its fair market value. The current
listing price could be more or less than the land’s fair market value”). In Delaware, Family Court has consistently
separated listing price of property from its fair market value. See, e.g., Karlsen v. Karlsen, 1992 WL 67010, *4
28
and Ms. York is anecdotal in nature, rather than relying on scientific methodology. 165 And, the
fact that some prospective buyers did not purchase the properties does not establish that no one
would purchase the properties for fair market value as established by the surrounding
communities with comparable characteristics. The Court finds that the Board acted
unreasonably in relying on Handy’s flawed appraisal and the realtors’ anecdotes over
Applicant’s two appraisals, which do not have the same flaws. The Board has given no
explanation for crediting Handy, Cox, and York’s flawed opinions over those of Appellant’s
appraisers other than its blanket statement that it found the testimony on which its decision was
based “persuasive.” 166 Counsel for the Board argued that term meant that the Board had
appropriately made a credibility determination within the Board’s authority. 167 Like in JMB
Income Properties, the Board chose to rely without justification on flawed valuation methods
over methods accepted in the industry. 168 In JMB Income Properties, the Board relied on market
rent rather than the contract rent, where the latter was the accepted method of valuation. 169 In the
instant case, the Board accepted Handy’s testimony that Sea Pines units were selling for less than
list prices as an indicator of diminished value, even though list prices are not an appropriate
measure of market value. 170 Similarly, the Board appeared to credit anecdotal evidence of
potential buyers losing interest over the objective valuation methods used by AT&T’s appraisers.
The Board did hear and cite in its written decision testimony from several Sea Pines
owners concerning the alleged negative aesthetic effects of the current temporary tower. Among
(Del. Fam. Ct. Jan. 27, 1992); Mooney v. Mooney, 1992 WL 69319, *3 (Del. Fam. Ct. Feb. 13, 1992). The Court is
aware of one case in which Family Court substituted listing price for fair market value, but this was only because the
parties had offered no experts. Cycyk v. Cycyk, 1996 WL 860585, *4 (Del. Fam. Ct. Dec. 24, 1996).
165
Appellant points out that Mr. Cox extrapolated from a sample size of only four units and failed to account for the
fact that the units he was comparing
166
March 25 Decision at 7.
167
Transcript of January 15, 2015 Office Conference at 5-6, 31.
168
JMB Income Properties, 1994 WL 45336 at *5.
169
Id.
170
See, e.g., Farr West Investments, 220 P.3d at 1095.
29
the evidence in the Record is the Affidavit of David Gerk, a Sea Pines owner. Mr. Gerk called
the temporary tower “a severe visual blight.” 171 Gerk explained, “[The tower] is the first, last,
and main thing I see when I drive up to my home and when I leave my home. It looms over my
backyard, is directly in my sight line from my balcony[,] and looms over the common areas
between our buildings as well as the parking lot.” 172 Gerk further testified that potential renters
have lost interest in the property after learning of the cell tower. 173 Similar testimony was given
by other Sea Pines owners.
While the law in Delaware is unclear, other jurisdictions have found that aesthetic
concerns may be considered in zoning decisions. 174 In Omnipoint, the court held that under
Pennsylvania law, neither aesthetic nor economic concerns are sufficient grounds for denying an
application for a special exemption, but this does not mean that they cannot be considerations.175
However, “[g]eneralized concerns and conclusive statements within the record about the
aesthetic and visual impact on the neighborhood do not amount to substantial evidence” to justify
denying an exemption. 176 In Cellular Telephone Co. v. Oyster Bay, the Court of Appeals
recognized that under New York law, aesthetic concerns may be a sufficient basis for a zoning
decision, but the court did not find the aesthetic concerns compelling enough in that particular
case because the concerns expressed were few, vague, and sometimes clearly based on
misinformation about what the finished project would look like. 177
171
Affidavit of David Gerk at 1.
172
Affidavit of David Gerk at 1.
173
Affidavit of David Gerk at 2.
174
Omnipoint Corp. v. Zoning Hearing Bd of Pine Grove Township., 20 F.Supp. 2d 875 (E.D. Pa. 1998); Cellular
Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999).
175
Omnipoint Corp., 20 F.Supp. 2d at 880.
176
Id.
177
Cellular Telephone Co., 166 F.3d at 495.
30
In the instant case, the aesthetic concerns expressed by opponents in the record are vague
and nonspecific. The tower is described as a “visual blight,” that “looms” over the Sea Pines
complex. 178 However, the Board fails to account for Appellant’s argument that the tower is in
accord with the mixed-use character of the area, which includes utility lines, a gas station, fast
food restaurant, hotel, and seafood restaurant. 179 Combining the general nature of the aesthetic
complaints with the lack of any concrete evidence of impact on use other than aesthetics, the
Court finds that the Board’s finding of substantial adverse effects is not supported by the
evidence.
D. Modification
At this stage, Appellant has been before the Board and the Court three times regarding
this project. The first time, the Board’s approval was reversed on procedural grounds. 180 The
second time, the Board applied the wrong standard and denied the application, resulting in the
decision ultimately being reversed by the Supreme Court. 181 Because the statute provides no
authority to remand, Appellant has had to file a new application each time. While courts
typically reverse rather than modify decisions of the Board of Adjustment Review, the statute, 9
Del. C. § 6918(f) clearly provides the Court with the power to modify when appropriate. This is
such an instance.
In JMB Income Properties, the court modified a decision of the Board of Assessment
Review under a statute that, like 9 Del. C. § 6918(f), explicitly gives the court the power to
178
Affidavit of David Gerk at 1.
179
Opening Brief at 18.
180
Sea Pines Village Condominium Assoc. of Owners v. Bd. of Adjustment of Sussex County, 2010 WL 8250842, *6
(Del. Super. Ct. Oct. 28, 2010).
181
New Cingular Wireless PCS v. Bd, of Adjustment of Sussex County, 65 A.3d 607 (Del. 2013).
31
modify. 182 Notably, however, the statute in JMB Income Properties allows for affirmation,
reversal, remand, or modification. 183 The statute in the instant case only allows the court to
affirm, reverse, or modify. 184 In the absence of the option to remand, the Court finds Appellant’s
argument that the decision be modified to grant the permit especially compelling. The Court
finds that AT&T demonstrated need through the expert testimony of Brock Riffel, who testified
concerning the number of calls handled by the temporary tower, the unavailability of alternate
sites and structures nearby, and the likely effects of removing the temporary tower. 185 The
evidence presented by the opposition in arguing that there is no need was predicated on the
existence of the current tower or the assumption that there are other structures nearby that could
be collocated, assumptions which AT&T’s expert testified are incorrect. Concerning the need
specifically for a 100-foot tower as opposed to the current, temporary 80-foot tower, the Court
follows the view expressed by AT&T’s expert that the 100-foot tower is necessary. 186 The Court
further finds that, contrary to the conclusion reached by the Board, the evidence in the record,
which consists of vague and generalized expressions of residents’ aesthetic distaste for the tower
and concerns about safety that are already addressed by the zoning code and federal
telecommunications regulations, does not reasonably support a finding of substantial adverse
impact on the use of neighboring property, particularly in the face of objective and, the Court
finds, compelling evidence to the contrary.
182
JMB Income Properties, 1994 WL 45336 at *2.
183
9 Del. C. § 8312(c).
184
9 Del. C. § 6918(f).
185
Transcript of November 18, 2013 Meeting at 34-40.
186
Transcript of November 18, 2013 Meeting at 42.
32
VI. CONCLUSION
For the foregoing reasons, the decision of the Sussex County Board of Adjustment is
MODIFIED and AT&T’s Application for a special use exception to construct a permanent 100-
foot telecommunications tower on Property is GRANTED.
IT IS SO ORDERED.
_________/s/___________________
M. JANE BRADY
Superior Court Judge
33