Submitted: January 30, 2015
Upon Appellant's Appeal from the Sussex County Board of Adjustment, MODIFIED.
Richard A. Forsten, Esq. and Michael A. DeNote, Esq., Saul Ewing LLP, Attorneys for Appellant.
James P. Sharp. Esq., Moore & Rutt, P.A., Attorney for Appellee.
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.
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. Once the other requirements for a telecommunications pole are met,  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. 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 appeal to Superior Court because the hearing on the application had been improperly noticed.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. 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. 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. 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."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 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. 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." 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. 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.
The final numbered statement, item 134, gives the Board's conclusions of fact and law.The Board found (a) that the proposed tower would have a substantial negative effect on the surrounding properties and (b) that Applicant had not demonstrated the need for the proposed tower. Concerning the negative impact of the tower, the Board found that the proposed tower "substantially affects adversely the uses of adjacent and neighboring properties." 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." Concerning need, the Board found that, having "weighed the evidence[, ]… Applicant failed to demonstrate that the proposed tower was needed." 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." 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."
III. Parties' Contentions
A. Appellant AT&T's Contentions
Appellant argues that the Board's decision is "not supported by substantial evidence."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 (b) that Appellant failed to demonstrate the need for the proposed tower. 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. 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.
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." 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. 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."
Furthermore, Appellant argues that the telecommunications tower is consistent with the use and general character of the surrounding area. "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 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." In short, Appellant ...