New Cingular Wireless PCS v. Sussex County Board of Adjustment

STRINE, Chancellor,

concurring.

I support the result reached by the majority and their conclusion that the word “substantially” is an important one that cannot be ignored in applying § 115-210 of the ordinance.27 I disagree, however, that the ultimate decision reached by the Board — to deny AT & T’s application for a special use exception — can be overturned solely on this basis.28 If the Board’s determination that AT & T had not demonstrated that “existing structures within a two-mile radius of the proposed location are not available for collocation” or that AT & T had not “substantiated” its need for a freestanding cell tower was proper and supported by substantial evidence on appeal to the Superior Court, then either determination, in my view, would provide an independent basis under §§ 115-209 and 115-194.2(D) of the ordinance to uphold the Board’s decision.29 But those determinations cannot be upheld because they were not supported by substantial evidence.30

The Board’s findings and decision on these related issues were premised in an important way on AT & T’s ability to improve the reliability of its service by placing an antenna on the water tower (sometimes described in the record as a “stand pipe”) owned by the Town of Bethany Beach. Although an AT & T employee testified at the Board’s hearing that the Town of Bethany Beach had twice rejected AT & T’s application to place an antenna on a water tower,31 a Town Council Member also testified that AT & T had not indicated any interest in using the water tower and that the Town remained open to allowing AT & T to use the tower as a site.32 The Board relied upon the *614Council Member’s testimony and premised its decision under § 115-194.2(D) to deny AT & T a special use permit on the availability of the water tower for use by AT & T. 33

On appeal to the Superior Court, AT & T presented indisputable evidence in the form of admissions by the Town itself that made clear that the Town would not permit AT & T to use the water tower.34 The Superior Court noted that the Board seemed to rely on a false premise in concluding that AT & T had not eliminated all possible locations for a facility in a two-mile radius.35 Nonetheless, the Superior Court also held that it could not consider that undisputed evidence on appeal because that evidence had not been before the Board.36

But, on appeal, a reviewing court must ensure that the “evidence is legally adequate to support the Board’s factual findings.” 37 Although the Superior Court correctly noted that it could not reweigh the evidence relied on by the Board, the Superior Court was permitted by 9 Del. C. § 6918(e) to “take evidence” as part of the statutory review process. Once it became apparent that the Board had premised a key legal finding on a clearly erroneous factual determination, the Superior Court had the power and, in these unique circumstances, which troubled the Superior Court itself,38 the duty to consider that undisputed evidence in order that a just determination of AT & T’s application would be made.39 However it came to be that the Town of Bethany Beach provided the Sussex County Board of Adjustment with the impression that the water tower was available to AT & T when it was not, the Town did so and caused the Board to rely upon a clearly erroneous fact, without which there is not substantial evidence to support the *615Board’s finding under § 115-194.2(D).40 Likewise, the Town’s own role in leading the Board to believe the water tower was available for use rendered the Board’s ruling arbitrary and capricious. To permit a ruling of a county adjustment board to stand when it is premised on a false finding of fact that a municipality within the county itself caused the board to make is Kafkaesque and the essence of arbitrary. By permitting the admission of additional evidence, 9 Del. C. § 6918(e) empowers the Superior Court to rectify situations like this and ensure that the Board’s findings are based on substantial evidence.

The Board’s reliance on this clearly erroneous fact finding also undermined its determination that placing an antenna on the water tower would provide adequate coverage and thus that AT & T failed to substantiate its need for a freestanding cell tower under § 115-194.2(D). But, as AT & T also points out, instead of addressing AT & T’s contention that it needed a freestanding tower to provide “reliable” coverage as an FCC licensee in the Bethany Beach area,41 the Board attributed to AT & T the notion that it was seeking “seamless” coverage, a word that the expert who testified for the Association used, not AT & T.42 After doing so, the Board then made a conclusory finding that implied if the permit was not granted, AT & T’s service, although not “seamless,” would be “adequate” without seriously weighing the record evidence that service was not reliable in several areas of the Town.43 In fairness to the Board, none of the parties before the Board seemed to present clear authority as to the applicable FCC standard AT & T was bound to meet as a licensee. But rather than consider the relevant reliability standard, even if that took an additional hearing to obtain input regarding what the FCC means by that term in practical application, the Board instead made a conclusory ruling based on different concepts from the license requirement of reliability.44 When the Board examines the application again, it must apply the relevant FCC standard in determining whether AT & T has demonstrated a sufficient need.

For these reasons, I believe that the majority’s conclusion as to the ultimate outcome is correct and concur in the result.

. Sussex Cty. C. § 115-210.

. See Appellant’s Opening Br.App. 78-80 (Decision of the Sussex County Board of Adjustment) [hereinafter Board Decision],

. Sussex Cty. C. § 115-209(B) (giving the Board the power to "hear and decide on applications for special exceptions upon which the board is specifically authorized to pass”) [hereinafter "App.”]; id. § 115-194.2(D) (requiring an applicant for a cell tower to "substantiat[e]” the need for that tower at a proposed location and to "submit to the Board of Adjustment documentation showing that existing structures within a two-mile radius of the proposed location are not available for collocation”).

. See 29 Del. C. § 10142(d) ("The Court’s review ... shall be limited to a determination of whether the agency’s decision was supported by substantial evidence on the record before the agency.”); Mackes v. Bd. of Adjustment, 2007 WL 441954, at *3 (Del.Super. Feb. 8, 2007) ("Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation omitted).

. App. 8.

. Id. at 44 ("We [i.e., the Town] attest that the documents that were put into the record are in fact true, and we were told that AT & T had no desire to use the Bethany Beach water tower for a facility.”).

. Board Decision ¶ 4 ("[T]he Board determined that the Applicant had not submitted sufficient evidence to prove other requisite elements of the ordinance. AT & T did not prove ... that existing structures within a two mile radius were not available for co-location. ... [T]he Town of Bethany Beach indicated that the Applicant declined to consider the possibility of an antenna on the stand pipe at the Bethany Beach Water Plant.") (emphasis added).

. See id. at 587 (Letter from Town of Bethany Beach to AT & T (Mar. 2, 2005)) ("The Town of Bethany Beach has no interest in erecting a cellular antenna on our water storage tower. The idea was unanimously rejected by our Council just a short time ago."); id. at 590 (Town of Bethany Beach Civil Alert (Jan. 26, 2011)) (notifying citizens that the "Council Voted Against a Proposal to Offer AT & T Access to the Town’s Water Plant and Stand Pipe for Installation of a Cellular Antenna”).

. New Cingular Wireless PCS v. Sussex Cty. Bd. of Adjustment, 2012 WL 5578866, at *1 (Del.Super. June 18, 2012).

. Id.

. Weiss v. Del. Dep't of Health & Soc. Servs., 2003 WL 21769007, at *3 (Del.Super. July 30, 2003) (citation omitted).

. New Cingular Wireless PCS, 2012 WL 5578866, at *1 ("Bethany voted unanimously to reject AT & T's request to use its water tower as an antenna location. Given the Board's citation to the availability of other locations, specifically Bethany, the Court’s outside-of-the-record knowledge that Bethany was, in fact, unwilling to negotiate with AT & T leaves the Court questioning whether what took place concerning Bethany was cricket.”).

. 9 Del. C. § 6918(e) ("If, upon the hearing, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct and report the same to the Court with the referee’s findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made.”).

. See, e.g., Weeraratne v. Unemp't Ins. Appeal Bd., 1994 WL 164564, at *2, *4 (Del.Super. Apr. 14, 1994) (reversing a board's decision when it relied on a "clearly erroneous” fact because it "deprive[d] the Court of determining whether the law was properly applied to the facts”) (citation omitted); Janaman v. New Castle Cty. Bd. of Adjustment, 364 A.2d 1241, 1244 (Del.Super.Aug.19, 1976) (reversing a board of adjustment’s decision when the decision lacked “substantial evidence in the record upon which the Board might have properly granted a variance”).

. App. 8-9 (testimony of AT & T radio frequency engineer). See also, 47 C.F.R. § 24.103(a), (e) (requiring licensees to build enough "base stations” to "ensure reliable service for the technology utilized”) (emphasis added); Pinney v. Nokia, Inc., 402 F.3d 430, 456 (4th Cir.2005) ("The FCC licenses portions of the radio spectrum to wireless [telephone] service providers so they can provide [personal communication services], and one of the main requirements for the grant of a license is that the licensee must construct enough base stations to provide coverage to the area for which it receives a license.”) (citing 47 C.F.R. § 24.103) (emphasis added).

. Board Decision ¶ 5; see App. 31 (testimony of expert for the Association).

. Board Decision ¶ 5.

. Id.