Judge affirms denial of At&T tower near Bethany Beach

Property owners in the Sea Pines Village community and nearby Bethany Beach came out victorious last week in the latest round of legal wrangling over a cellular communications tower that AT&T had hoped to erect on property just east of Route 1 and just south of town limits. Delaware Superior Court Judge T. Henley Graves issued a decision in AT&T’s appeal of a denial for a special use exception for the tower, finding in favor of the tower’s opponents.

In the ruling issued June 18, Graves found that the Sussex County Board of Adjustment (BoA) had had sufficient evidence to deny AT&T’s second try at the exception in March of 2011 and that it was entitled to do so based on the arguments and evidence presented to them at that time.

Graves noted that his role in the appeal was not to substitute his judgment for that of the BoA.

“The Board, not the Court, possesses the power to weigh evidence and to resolve conflicting testimony and issues of credibility. The burden of persuasion is on the party seeking to overturn a decision of the Board to show that the decision was arbitrary and unreasonable.”

So, instead of reweighing the evidence in the case, Graves was called upon only to determine whether there was substantial evidence on record to support the board’s findings and whether their decision was free from legal error.

Graves noted that there was conflicting testimony from AT&T’s experts and those appearing in support of the Sea Pines Village HOA and other opponents as to whether the cell tower was needed, whether there were alternatives to the tower or the proposed location and whether it would negatively impact the value of nearby homes or the quality of life of those using them. But, he said, the issue that he was called upon to decide was one of whether there was “substantial evidence” upon which the board could reasonably have denied the application. “Substantial evidence,” in terms of what the Board needed to have to make its decision, is defined, Graves said, as “relevant evidence that a reasonable person might accept as adequate to support a conclusion.”

By that criteria, much of the first-person evidence provided by opponents of the tower — including more than 300 opponents signing a petition and hundreds of letters and other communications — may have taken on added weight in Graves’ decision, as he concluded that the Board had had substantial evidence for their conclusion in denying AT&T’s application.

Judge rules board could make call on conflicts

Graves acknowledged AT&T’s argument in its appeal that the Board had not sufficiently detailed the evidence upon which it had made the decision when it rendered its findings orally in April of 2011, leaving a record inadequate for him to review. But he said his decision was to be based upon statement of the conclusions of the board and the presentation of material facts to support the decision — including the written Findings of Fact the board issued in late May of 2011.

In that, Graves said, he found sufficient evidence for the board’s decision, citing in particular that the board determined that AT&T had not met some of the requirements for granting of a special-use exception.

The first of those was to prove the need for the tower and to provide substantial evidence of that need. A second was that there was no negative impact on neighboring properties. The third was for AT&T to have proven that it had eliminated all existing structures in a two-mile radius as potential locations for the cell antenna array it argued it needed.

On that third matter, Graves noted some apparent conflicts between AT&T’s interpretation of events and that of the Town of Bethany Beach. AT&T and its representatives argued that they had searched the area for a suitable location and ruled out many as suitable and others as having owners willing to work with them, including Sea Colony and the Town of Bethany Beach, at its water plant facility off Collins Street.

AT&T’s location specialist testified that he had approached the Town about using the facility but had been told the Town was not interested. Letters on the matter were part of the evidence presented by AT&T. However, Town Manager Cliff Graviet had also submitted a letter indicating that the same specialist had told him AT&T would not consider using the standpipe as a location. “Without hesitation, Mr. Zolna told me no,” he wrote.

Mayor Tony McClenny, too, supported that account of the Town’s interactions with AT&T over the potential to locate the antenna on the standpipe.

“We were told that AT&T had no desire to use the Bethany Beach water tower for a facility,” he had told the board during testimony at the public hearing.

Regardless of that conflict in views, Graves said, by all accounts, there was no question that AT&T considered the water tower to be a desirable location. Though that might have contradicted the Town’s interpretation at one point or another, Graves said AT&T’s testimony that it had approached the Town indicated that there was, in fact, another potential location for the antenna that had not been excluded.

“The board was entitled to weigh the evidence and rely on Mr. McClenny’s testimony, as well as Mr. Graviet’s letter, to conclude that AT&T had not exhausted negotiations with Bethany,” he said.

Graves noted also that AT&T had proceeded to discuss the potential for using the standpipe with Bethany officials while the board’s decision was on appeal, but that the town council had voted unanimously during that time to reject AT&T’s request.

“Given the board’s citation to the availability of other locations, specifically Bethany, the Court’s outside-of-the-record knowledge that Bethany was, in fact, unwilling to negotiate with AT&T leaves the Court questioning whether what took place concerning Bethany was cricket,” he wrote in his decision. “Nevertheless, the Court’s decision must be on the record and, therefore, the board’s decision is affirmed.”

Regarding the issue of proving need for the tower, Graves again noted conflicting evidence from the two sides, with AT&T asserting that it had a hole in coverage in that area and was required by the FCC to fix that problem.

But experts for the opponents asserted that AT&T was not required by law to have “seamless” coverage and that — despite AT&T offering complaints from customers about dropped calls in the area — even residents of Sea Pines Village had testified that the service there was adequate.

Graves found a failing in AT&T’s argument that such a requirement existed, in that their legal counsel had been unable to cite for the board a specific regulation or law that required them to provide the improvement to service in the area that they said the tower was designed to fulfill. He said AT&T had asserted they expected that the requirement would lead to fines for AT&T if the tower was not erected, but no evidence to that effect was submitted.

With that evidence lacking, Graves said the board was reasonably able to determine that AT&T hadn’t proven its case for need.

Impact on neighboring properties also contested

A third aspect of AT&T’s case before the board in which Graves said board members had reasonably determined AT&T had failed to prove its case was a requirement to show that the proposed use would not adversely affect the neighboring property.

While AT&T had offered evidence from real estate experts that properties near cell towers did not lose value due to the towers, opponents of the tower had also offered up expert testimony that not only did the neighboring properties lose value but that users of the properties could suffer a reduced quality of life.

Both sides had testified about the difficulty of finding so-called “matched pairs” of real estate valuations that compare the impact on property values with the addition of a cell tower nearby.

AT&T’s matched pairs were predominately outside the immediate area, and opponents said the differences between valuations in Ocean City, Md., for example, and Bethany Beach meant such comparisons couldn’t be relied upon. Additionally, they said a matched pair in Ocean City that involved a fire communications tower was irrelevant because the impact of a fire tower was not as substantial as a cell tower.

Lacking for nearby matched pairs, opponents’ experts had polled local Realtors about the impact of a cell tower on property values. All of the Realtors whose opinions were included in that survey said the closer to a tower the property in question was located, the greater the impact on its value. They estimated that property value loss at between 10 and 30 percent.

Graves said that, with the conflicting expert testimony on the issue, the board had been free to accept the opponents’ position that there would be a loss of property value.

Moreover, he said, home owners in general can be considered to have expertise in the value of their own property, and the fact that many of the nearby homes were second homes whose owners were reliant upon rental income in order to maintain them meant they had expertise that could be considered by the board. Owners had testified that they expected less rental income, as well as reduced property sale value, fewer visitors among their friends and family and an overall reduced quality of life.

Graves said the fact that the 100-foot-tall tower was significantly taller than surrounding trees and buildings meant the board was able to consider the “common-sense approach” advocated by the home owners, that the presence of the tower would have a significant negative impact on property values, especially in a depressed real estate market.

Experts for the opponents had testified that, in such a market, the presence of a tower nearby could be amplified as a deciding factor in buyers’ choice of property to purchase and the price offered.

Further, Graves said AT&T hadn’t refuted — and probably couldn’t refute — the opponents’ testimony about their concerns about the safety of their homes with the tower in place or about the reduction in their quality of life that they argued would happen.

Referencing a similar case in Dewey Beach that had been concluded in the favor of applicants, Graves said that decision had relied upon the fact that there were a “few” statements about potential negative impacts and a predominance of questions in the record of that case, rather than statements of opposition.

In the case of the AT&T tower, Graves said “many nearby property owners” had testified about aesthetic, visual and safety concerns — including an increased propensity for lightning strikes and the presence of volatile fuel supplies on site — and that those concerns “went un-rebutted by AT&T, save for general averment that the proposed tower would be built subject to national code requirements.”

“Under the unique circumstances prevented, homeowners’ testimony as to quality-of-life issues may serve as evidence of a negative effect on neighboring property use,” he said, again agreeing that the board could properly consider that as reason for finding there could be negative impact and for denying the application.

Having found that the board had reasonably concluded, based on the evidence and testimony presented, that AT&T had failed to meet the criteria for a special-use exception for the tower, Graves affirmed the board’s decision to deny the application by AT&T.

Opponents celebrate

Opponents of the tower celebrated the ruling this week, concluding nearly three years of work to oppose the tower, including a short-lived 3-2 BoA ruling in AT&T’s favor that was later overturned due to errors in posting of legal notifications for the prior public hearing.

“This is a tremendous victory for Sea Pines Village homeowners (and many others in the area) who are adversely affected by this ill-conceived cell-tower proposal,” said Gary Bogossian, a Sea Pines Village home owner and past president of the SPV homeowners’ association board, in a statement this week.

“SPV homeowners have spent well over $100,000, over almost three years trying to stop this monstrosity,” he continued. “It has been proven, and the BoA recognized in their considered ruling, that this is one of the worst locations possible for a cell tower, and that AT&T has many other viable alternatives they just haven’t even tried.”

Bogossian said many thought AT&T’s appeal to be a “stall tactic” by the company in order to avoid having to remove a temporary tower, which it had erected on the site after that 3-2 board approval, any sooner than absolutely necessary.

To date, the temporary 80-foot-tall pole has remained in place, despite notifications of code violations from Sussex County in the last year and efforts by opponents to force AT&T to remove it. Graves had previously stayed requests to force its removal, pending his decision in the appeal.

“It is now time for Sussex County to enforce their standing order to finally take down the tower and start getting life back to normal for SPV residents,” Bogossian asserted.

AT&T has not stated that it will remove the tower without enforcement or possible legal action from the County, but it has previously been served with notices of the violation, which has been in effect since the initial approval was overturned.

The company was nominally permitted to erect a tower after the initial approval but it bore the risk of doing so should the approval be reversed, as was the case. With its appeal in the re-hearing of the application now denied, AT&T has no approval for the tower, nor any pending case by which it could gain such approval.