dissenting.
I respectfully dissent. I do so because (1) my review of the evidence presented to the BZA does not convince me that St. Charles Tower met its burden of proof for a special use permit, (2) the BZA findings are supported by substantial evidence, and (8) the applicable law should not be manipulated to require three established landowners to live in close proximity to a 185 foot tall cellular tower.
The majority concludes that St. Charles submitted evidence to establish its compliance with the statutory requirements by showing a "coverage gap" and further, that the proposed site "is the only legally and technologically viable alternative to eradicate the gap." At 292. My reading of the BZA hearing transcript reveals no "coverage gap" per se. Rather, there is a problem with coverage for Cingular customers. Granted, St. Charles' attorney Krista Lockyear represented to the BZA that her client had no secondary site, had "investigated ... the ability to put this tower in a different location to no avail," (Tr. 82), and had attempted co-location and "those attempts have been turned down." (Tr. 91.) Sprint representative Jason Evans testified, "Sprint has actively looked for eight months." (Tr. 90.) Nevertheless, in my view, arguments or representations of counsel do not establish the absence of all other viable alternatives. The testimony of remonstrators indicates that St. Charles proposed to locate their tower by "buying out" or leasing the least expensive and most neglected property in the area. On balance, I believe that the BZA decision did not deprive St. Charles of its only appropriate site for locating its cellular tower, only the cheapest and easiest site to use.
Second, I do not believe that the BZA findings suffer from fatal deficiency. St. Charles has suggested, and the majority has apparently agreed, that the BZA is constrained to consider only that evidence of land use and impact consistent with an existing zoning classification. I disagree that the BZA's focus need be so narrow, inasmuch as the BZA is specifically directed to consider adverse effects of a proposed use on the "surrounding area." Too, the BZA is directed to look at potential hazard to residents, without reference to zoning classification. Finally, the BZA must consider a proposed use in light of the comprehensive plan and public welfare. Thus, regardless of the classification applicable to a discrete site, the BZA must always look at the bigger picture.
St. Charles also complains that the BZA "got the cart before the horse" when it considered the lack of set-back compliance, despite the withdrawal of the petition for a variance. However, the petition was not withdrawn until after the hearing was concluded, and the BZA was duly advised that the proposed tower location was in close proximity to three residences. In light of its obligation to consider the proposal's impact on the public convenience and welfare, the BZA would have been derelict in its duties had it disregarded such information.
Finally, St. Charles has convinced the majority that the BZA findings were deficient because they were directly or indirectly based on "concern over the environmental effects of radio frequency emissions." Appellant's Br. at 16. St. Charles characterizes the testimony of the remonstrators as focusing on aesthetics, speculative diminution in property values and perceived safety hazards of radio emissions. Arguably, under the TCA, such concerns cannot provide an independent basis for the denial of a proposed cellular tower erection.
*296However, the remonstrators in this case did not testify merely that they feared radio emissions but also expressed concern about the tower falling. Remonstrator Eric Saubier urged the BZA to consider "the legitimate fall problem" and opined, "there is a 800 foot limit for a reason." (App.86.) Remonstrator Carol Straub, a next door neighbor to the proposed site, declared that she and her ten-year-old child would not go into the yard to play if the proposed tower were erected "because of the aspect that the tower may fall on us." (App.88.) The BZA properly drew a distinction between a perceived health risk from radio emissions and the remon-strators' concern about the potential for a tower to fall in the event of a structural defect, an accidental impact, or a natural disaster. Undoubtedly, the setback requirement was enacted as a cautionary measure with a view toward such legitimate concerns. The BZA was not remiss in considering such. The record contains substantial evidentiary support for the BZA's denial of the special use permit.
In conclusion, I think it appropriate to look at what the majority decision does, or does not, accomplish Mandating the grant of a special use permit still does not ensure that St. Charles is able to erect its cellular tower in its choice of locations. It is still prohibited by local zoning law from locating its tower within 300 feet of a residence, or within two feet for each foot of tower height. The TCA does not contravene or supplant this requirement. There are three pre-existing residences within 370 feet of the proposed site of the 185-foot tower. One is 168 feet away. There is simply no law, federal or state, that requires these landowners to be subjected to a cellular tower within falling distance, just because the proponent of the tower insists upon attaining the most economical site to facilitate its competitive advantage in the cellular communications market. The local community is entitled to control construction within its domain, a privilege not usurped by the TCA.
The BZA's decision denying St. Charles a special use permit rested upon substantial evidence. Accordingly, the trial court did not err by refusing to reverse the decision upon a writ of certiorari. I would affirm the trial court.