AT&T v. Sussex County Board of Adjustment.

• Court: Superior Court of Delaware
• Decided: April 30, 2015
• Docket: 14A-04-001
• Status: Published

Opinion

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