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Antietam Wireless Services, LLC v. New Castle County Board of Adjustment

Superior Court of Delaware

June 27, 2019


          Date Assigned: March 1, 2019

          On Appeal from the New Castle County Board of Adjustment. REVERSED.

          Richard A. Forsten, Esquire, Pamela J. Scott, Esquire, Saul Ewing Arnstein & Lehr, LLP, Wilmington, Delaware, Attorneys for Petitioners.

          Aysha L. Gregory, Esquire, Daniel P. Murray, Esquire, New Castle County Office of Law, New Castle, Delaware, Attorneys for Respondent.

          Calvin L. Scott, Jr., Judge

         This is an appeal from a decision of the New Castle County Board of Adjustment ("Board") denying a Special Use permit to appellants Antietam Wireless Services ("Antietam") and Faith Evangelical Lutheran Church ("Faith").[1] Faith is the owner of the twelve-acre parcel located at 2265 Red Lion Road, Bear, Delaware (the "Property"). Antietam applied for a Special Use permit to construct a 150-foot cell tower on the Property (the "Application"). For the reasons set forth herein, the decision of the New Castle County Board of Adjustment is REVERSED.


         The Board conducted a public hearing on June 28 and August 9, 2018, for the purpose of determining whether Antietam's Special Use Application should be granted. Antietam applied for the permit to construct a cell tower on the Property in order to accommodate an anticipated increase in data traffic. Prior to the hearing, Antietam submitted detailed drawings and a site plan showing, among other things, the location, design and height of the proposed tower, as well as a cover letter detailing how the Application satisfied the pertinent requirements for a special use permit. In addition to Antietam's submissions, the Department of Land Use (the "Department") submitted a written Report of Recommendation to the Board, recommending that the Board grant the requested special use permit because Antietam met the requirements for a special use permit and adequately addressed the standards for installing a new commercial communications tower.[2]

         The Board's Public Hearings

         At the hearing, Michael Shine, the Principal for Antietam Wireless Services, along with his agents, Richard Forsten, Esq. and Michael Clary, P.E., presented the Application. Antietam began the hearing by providing statistics to illustrate the growth in general demand for cellular data.[3] The goal of the new tower is to provide reliable cell service, assuring fewer dropped calls and more robust support for all cellular services. Antietam provided additional supporting documents, including: aerial photos of the Property, one of which indicated the location of the proposed tower; ground level photos of the area; data coverage maps of the area to demonstrate the increase in reliable coverage the proposed tower would provide; and an article that reviewed and discussed the lack of impact a cell tower has on property values based upon numerous appraisal studies, two of which were in Delaware.

         The tower itself is approximately 271 feet from the property line to the north and 120 feet from the railroad tracks. Antietam described the substantial tree coverage surrounding the proposed site and emphasized that individuals in its immediate vicinity will be unable to see the tower. And, Antietam acknowledged that though individuals approximately half a mile or more away may be able to see the tower above the trees, it will be off in the distance. Antietam asserted that cell phone towers blend into the background and do not affect property values in any appreciable way, and presented an article indicating the same as support. Antietam also reviewed facts relevant to the applicable requirements of Sections 40.03.326 and 40.31.430 of the New Castle County Code of Ordinances. Whether the Application satisfied Sections 40.31.430(B)(3) and (4) were determinative in the outcome of the proceeding. Subsection (B)(3) requires that "[t]he use is compatible with the character of the land in the immediate vicinity."[4] Subsection (B)(4) requires "[t]he design minimizes the adverse effects, including visual impact on adjacent lands."[5]

         Antietam sought to demonstrate that the use is compatible with the character of the land in the immediate vicinity and minimizes visual impact on adjacent lands through the following means, as outlined by the Board's decision:

1. The Subject Property is 12 acres in area, heavily forested, and surrounded by forested properties. The design minimizes adverse effects, including visual impact on adjacent lands, by relying on the thick tree cover at ground level. While acknowledging that the trees on the Subject Property are deciduous, the Applicant argued that even without leaves, due to the substantial breadth of the forest in most directions and the sheer number of trees, the tower would be shielded from view year-round.
2. The Applicant also supported the tower's alleged consistency with the surrounding land's character by noting that there are other towers located throughout the County located in closer proximity to residential properties and that are more visible from outside their host parcels. Nothing especially distinguishes this locale from many other topographically similar areas where cell towers exist in harmony with the land, the Applicant suggests.
3. Additionally, the tower will blend in with the vertical presence of many existing utility poles nearby.[6]

         The Board then invited public comment. In addition to the witnesses, an excess of fifty persons from the surrounding community attended the hearing. When polled by the Chair, not one person was willing to testify in favor of the Application while thirteen individuals testified in opposition to the Application. From all of the witnesses who commented on the visibility of the proposed tower, the general message was that the tower would be incompatible with the character of the surrounding landscape. Thereafter the Board continued the hearing to another date to allow Antietam's counsel and the Board's attorney to research and address a legal issue raised by a member of the public.[7]

         On rebuttal, Antietam summarized its prior arguments pertaining to the satisfied requirements set forth in Sections 40.03.326 and 40.31.430. Antietam added that if the tower's height were reduced it would decrease in effectiveness, and explained that the at-issue legal standards found in Section 40.31.430 (B)(3) and (4) require the design to minimize the visual impact, as opposed to negating any and all adverse impact. Antietam asserted that the windmill feature does an adequate job of minimizing the visual impact on adjacent lands, and reiterated that the proposed site is far enough away from homes and sufficiently screened by mature trees.[8]

         The Board's Discussion, Vote, and Decision

         After fully hearing Antietam's presentation, the Department's recommendation, and public comments, the Board moved to vote on whether to grant the requested special use permit. The Board chair stated the following, in relevant part:

My impression in looking over the evidence as illuminated by a site visit is that this is a very good location to put a cell tower. That there is substantial forest around it and it's a nice big site. It's fairly typical of places that cell towers are put. . . . There are a lot of deciduous trees. . . . Overall it seems to me that the community may be making a mistake here.... Probably a mistake to oppose this because we think it probably will fit in.
However, there is no greater expert on what is consistent with the character of the local community than the people who live nearby. And they are out in force. It's impossible to ignore. No matter what... we may personally find to be the lack of impact on the community for this cell tower . . . that's not the question. The ultimate experts on this are the people who live in the area. . . .
[Cell towers] just don't bother people. But it's become an object of community focus here. And with superb organizing and a lot of feeling and a general sense of the community to reject this. And I don't see how the Board can ignore that input the community this particular installation with this height and this particular adornment at the top to be inconsistent with the character of the land in the immediate vicinity. And for that reason I intend to vote against [the Application].[9]

         Ultimately, two Board members voted to grant the Application, while three Board members voted to deny it.[10]

         In its Decision, the Board determined that the Application met all of the New Castle County Code requirements except for one - Section 40.31.430(B)(3).[11] The Board found that Antietam failed to demonstrate that the cell tower was compatible with the character of the land in the immediate vicinity.

         The Board recognized that, as Antietam argued, there is a legitimate point of view that there is in fact no land in New Castle County that would be compatible with a 150-foot tall cell tower as such a tall tower, by its very nature, will protrude noticeably above nearly any landscape.[12] The Board also acknowledged a potential interpretation of Section 40.03.326(E) which, if intended by County Council, could negate the Board's power to find that this particular use can ever be denied as incompatible with the character of the surrounding land because it is visible from outside the property.[13] In regard to this, the Board noted:

The requirement that cell towers be "camouflaged" or "disguised" in every case, coupled with the stringent imperative that no approval of a new tower occur absent a showing of both technical and economic unfeasibility to provide alternative design, could indicate a legislative intent to "occupy the field" and thereby except cell towers from disapproval based solely on a finding of incompatibility with the character of the land because of aesthetic opposition.[14]

         Still, the Board declined to find as a matter of law that a special use permit for a communication tower is exempt from considerations of visual impact on the surrounding community under Section 40.31.430(B)(3), and further noted that "such visual impacts mostly propelled the community objections here."[15] The Board observed:

The Applicant had the opportunity to alter its Application by proposing a smaller and less obtrusive tower. In this case, the Board sensed that decorating the tower with a fake windmill might have increased its visual disruption of the surrounding land rather than being an effective disguise, and further incensed residents. The Applicant might have reduced impact by lowering the proposed functional height of the tower (which would have traded off a concomitant loss of effective range) but did not. Rather, the applicant chose to proceed with a 150 foot tower "disguised" as a windmill.[16]

         To that end, the Board noted:

The Applicant might have applied for exception from the statutory camouflaging requirements but did not. Such relief would have permitted the shortening the tower by 10 feet and reducing its mass because of decreased wind loading. The Board therefore did not consider such a measure. Although relief from the "camouflaging" requirement for communications towers could be appropriate in some instances, the highly specific language of Section 40.03.326(E) caused us not to take that initiative.[17]

         Two Board members viewed the parcel for purposes of familiarizing themselves with the Property.[18] And, "despite their personal impression that a cell tower should be relatively inoffensive in the proposed location, joined the voting majority Board members who considered the local residents to be experts regarding the character of the land in the immediate vicinity of the proposed use.[19]

         The Board explained in its Decision that it gave significant weight to the statements and petitions with hundreds of signatures from local residents declaring that the tower is incompatible with the local environment in deciding to deny the Application.[20] However, while the quantity of opponents was "impressive," the Board found that the number of opponents "mostly served to amplify the more important factors of quality, specificity and evident sincerity of community objections to altering the character of the valley in which this construction was proposed."[21] It was "[t]hose objections," the Board wrote, that "tipped the Board into a debated, narrowly reasoned and split 2-3 vote to deny the special use permit."[22] The Board's Decision concluded with the following:

In the end, the Board finds that the extraordinary level and quality of community opposition cannot be ignored, absent specific judicial or legislative guidance to the contrary on the narrow issue at hand. If such testimony cannot turn the decision, what purpose does it serve to ask for public comment as to whether use for a communication tower is compatible with the character of the land in the immediate vicinity?[23]

         Parties' Contentions

         Antietam seeks for the Court to reverse the Board's denial and order the Application granted.[24] Antietam argues that, in substituting the judgment of opponents for their own judgment, two Board members erred as a matter of law and acted in an arbitrary and capricious manner.[25] Antietam asserts that "by their own admission, two Board members acted in disregard of the facts and circumstances of the case - substituting the opinion of local residents who opposed the tower for their own independent judgment. . . ."[26] In support of this assertion, Antietam directs the Court to the Board Chair's remarks made prior to the Board's vote.[27]

         Antietam also argues that the Board's decision should be reversed as it is "replete with other errors and misunderstandings."[28] Namely, Antietam contends that the Board erred in: (i) suggesting that it might have approved the Application if the tower were 10 feet shorter;[29] (ii) viewing the compatibility requirement as an "expert" determination and deferring to the residents as "experts;"[30] and (iii) denying the Application based merely on community opposition.[31]

         The Board refutes Antietam's contention that members of the Board disregarded the facts of the case in voting against the Application and argues that its decision was a product of reason and logical deduction supported by the substantial evidence in the record.[32] In this regard, the Board contends that it "analyzed all specific and general requirements of a special use permit, and found the Application failed in one aspect: the compatibility with the character of the community."[33] The Board argues that it found Antietam's application deficient concerning the character of the land, including its argument that the site was large enough to shield the tower and that cell towers were now commonplace.[34] The Board asserts that the two Board members in question found the location to be incompatible based on the totality of the evidence, including public testimony.[35] It is because those two Board members used their independent judgment in considering all of the evidence, the Board argues, that they chose to join the voting majority despite their personal impressions from viewing the site.[36]

         Moreover, the Board argues that its denial of the Application did not turn on Antietam's failure to reduce the height of the tower, and that any discussion regarding whether the § 40.03.326(E) camouflaging requirement was necessary in this particular circumstance was independent of the discussion on the tower's compatibility.[37] Next, the Board argues that, despite using the word "expert" in describing the neighboring residents who testified as to the proposed towers impact on the character of the area, there is no evidence to support Antietam's assertion that the Board credited the neighboring residents' testimony as "expert testimony" in the legal meaning of the term.[38] Rather, the Board contends, it afforded the neighboring residents' testimony the proper weight, "as their testimony was based on their personal experiences of the area's character."[39] For this reason, the Board avers that it provided more weight to neighboring residents' testimony of the area's character than it did Antietam's argument that the proposed tower would be in a forested location and that such towers were routinely found throughout New Castle County.[40]

         Finally, the Board opposes Antietam's claim that it allowed the public to make its decision in denying the Application. The Board contends that it carefully analyzed both the general and specific special use requirements found in §§ 40.03.326 and 40.31.430, conducting a hearing on two dates and developed an expansive record before concluding that the strong public testimony and written opposition regarding the nature of the immediate vicinity was more persuasive than Antietam's evidence. The Board argues that it considered the needs of the general community, among other things, the growing demand for cell service, and the social utility of cell towers, and determined that the balance of equities was such that Antietam did not satisfy the compatibility requirement.[41]

         Standard of Review

         In reviewing an appeal from the Board of Adjustment, the Court must limit its scope of review to correcting errors of law and determining whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law.[42] "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[43] When substantial evidence exists to support the Board's decision, the Court may not reweigh the evidence or substitute its own judgment for the Board's.[44] The Board, not the Court, has the power to weigh evidence and to resolve conflicting testimony and issues of credibility.[45]

          The party seeking to overturn the Board's decision has the burden of persuasion to show that the decision was arbitrary and unreasonable.[46] "If the Board's decision is fairly debatable, there is no abuse of discretion."[47] Despite the Board's wide discretion, it may not do whatever it considers equitable without regard to statutory requirements and the need for substantial evidence to satisfy those requirements.[48] The Board must particularize its findings of fact and conclusions of law to enable the Court to perform its function of appellate review.[49]


         At the heart of Antietam's argument for reversal of the Board's decision is that the Board failed to act independently and impartially in replacing their own judgment with the opinion of local residents opposing the tower.[50] Antietam argues that "the Board must balance the needs and welfare of the general community against the feelings of local neighbors." For support, Antietam asserts that in Beatty v. New Castle County Board of Adjustment, [51] this Court, "made clear that the neighborhood concerns are not enough to deny a permit."[52]

         In Beatty, the appellant appealed the Board's decision to grant Delmarva Power & Light Company a special use permit for the purpose of installing a 200-foot communication tower.[53] The appellant raised concerns regarding, among other things, the detrimental effect on the property values of the adjacent landowners.[54] In affirming the Board's decision, the court found ...

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