IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANTIETAM WIRELESS
SERVICES, LLC, and FAITH
EVANGELICAL LUTHERAN
CHURCH,

Petitioners,
C.A. No. NI8A-09-004 CLS

V.

NEW CASTLE COUNTY BOARD
OF ADJUSTMENT,

Respondent.

Date Assigned: March 1, 2019
Date Decided: June 27, 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.

SCOTT, J.
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”).' 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.

Background

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

 

1 Pursuant to 22 Del. C. § 328 grants the Superior Court jurisdiction to hear appeals
challenging the illegality of the Board’s decision. See Mitchell v. Bd. of Adjustment,
706 A.2d 1027, 1028 n.3 (Del. 1998).

2
Antietam met the requirements for a special use permit and adequately addressed the
standards for installing a new commercial communications tower.’

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.*_ 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

 

2 Ex. C of Pet’rs’ Op. Br. at 8. (Decision of the Board of Adjustment) (Sept. 13,
2018) (D.I. 9) [hereinafter, “Board’s Decision’ ].

> Id. at 3-4 (“Between 2007 and 2014, AT&T saw a 100,000% increase in traffic
data on its network. Cisco Systems projects that traffic demand will increase six-
fold between 2015 and 2020.’).

3
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.”* Subsection (B)(4) requires
“It]he design minimizes the adverse effects, including visual impact on adjacent
lands.”°
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:

l. 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

 

4 New Castle County, Delaware Code of Ordinances § 40.31.430(B)(3).
> New Castle County, Delaware Code of Ordinances § 40.31.430(B)(4).

4
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.°

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.’

 

° Td. at 5.

’ See id. at 7-8; see also Transcript of the New Castle County Board of Adjustment
at 85-87 (Application 2018-0148-A) (June 28, 2018) [hereinafter “Tr. of June Public
Hearing”]. When the hearing resumed on August 9, 2018, Antietam provided a
written submission concluding that the case 1s not applicable to the matter before the
Board. Antietam explained, and the Board’s attorney concurred, that the matter
before the Board is distinguishable because Antietam is seeking a special use permit

5
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.*

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

 

in accordance with the local New Castle County Code provisions. See Board’s

Decision at 8.
8 Td.
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].?
Ultimately, two Board members voted to grant the Application, while three Board
members voted to deny it.!°

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).'' 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

 

° Transcript of the New Castle County Board of Adjustment at 85-87 (Application
2018-0148-A) (Aug. 9, 2018) [hereinafter “Tr. of August Public Hearing”.

19 Td. at 8-9.

'l Board’s Decision at 9. The Board opined that it accepts that the requirement of
Section 40.31.430 (B)(4) to minimize visual impact, insofar as possible for a 150-
foot communications tower, 1s satisfied.

7
noticeably above nearly any landscape.'? 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.'* 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."4

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

 

'2 Td. at 10.
13 Section 40.03.326(E) provides:

E. Alternative design tower structure. Where co-location is not
possible, an application for new or replacement towers/monopoles shall
provide the Department with a report and plans on the feasibility of
locating the antenna on a support structure that screens or camouflages
the presence of the antennas and support structure from public view, in
a manner appropriate to the site’s context and surrounding
environment. Examples of concealed, camouflaged, or disguised
antenna structures include manmade trees, clock towers, flagpoles,
light structures, steeples and other similar like objects. The Department
or Board of Adjustment shall not approve a new tower/monopole unless
it is determined to be both technically and economically unfeasible to
provide for some sort of alternative design.
'4 Board’s Decision at 10 (emphasis in original).

8
surrounding community under Section 40.31.430(B)(3), and further noted that “such
visual impacts mostly propelled the community objections here.”'!> 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.'°

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.'’

Two Board members viewed the parcel for purposes of familiarizing
themselves with the Property.'* And, “despite their personal impression that a cell

tower should be relatively inoffensive in the proposed location, joined the voting

 

'S Board’s Decision at 11.

16 Td.

'7 Td. at n.2.

'8 Board’s Decision at 12 (“It is permissible for Board members to view the parcel
for purposes of familiarizing themselves with the property.) (citing Cooch's Bridge
Civic Ass'n v. Pencader Corp., 254 A.2d 608, 609-10 (Del. 1969)).

9
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.!”

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.“ 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.””! 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.”
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?”

 

'? Board’s Decision at 12.
20 Tq. at 11-12 (“Community opposition was remarkably numerous and vigorous, but

even more persuasively was the consistent [sic] in the nature and quality of the views
expressed. Local residents desire to maintain what they consider to be a rural
character in their vicinity, which they believed a cell tower would damage.”).
*I Td. at 12.
2 Board’s Decision at 12.
3 Td.

10
Parties’ Contentions

 

Antietam seeks for the Court to reverse the Board’s denial and order the
Application granted.4 Antietam argues that, in substituting the judgment of
opponents for their own judgment, two Board members erred as a matter of law and

2° Antietam asserts that “by their own

acted in an arbitrary and capricious manner.
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 .. . .”*° In support of this assertion, Antietam directs the
Court to the Board Chair’s remarks made prior to the Board’s vote.?’

Antietam also argues that the Board’s decision should be reversed as it is
“replete with other errors and misunderstandings.””* Namely, Antietam contends
that the Board erred in: (i) suggesting that it might have approved the Application if
the tower were 10 feet shorter;”’ (ii) viewing the compatibility requirement as an
930

“expert” determination and deferring to the residents as “experts,” and (iii) denying

the Application based merely on community opposition.”!

 

*4 Pet’rs’ Op. Br. at 17.

> Td. at 2.

26 Td. at 12-13 (internal quotation marks omitted).
27 See supra note 9 and accompanying text.

8 Pet’rs’ Op. Br. at 18.

29 Td.

3° Td. at 19-20.

3! Td. at 21-22.

1]
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.** 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.”*> 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.** 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. 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.*°

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

 

32 Resp’t’s Answ. Br. at 15.

33 Id. at 15 (citing Board’s Decision at 12).

34 Td. at 16.

35 Resp’t’s Answ. Br. at 21-22.

36 Td. at 22 (“As is their duty, they adduced, considered and weight conflicting
evidence; they found more weight on one side.”).

12
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.*” 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.** 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.” *” 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.*”

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

 

7 Id. at 23-24.
8 Td. at 26.
3° Td. at 26.
0 Td. at 26.

13
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."
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.”*° 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.“* The Board, not the Court, has the
power to weigh evidence and to resolve conflicting testimony and issues of

credibility.*

 

41 Td. at 28.
42 Mesa Commc'n Grp. v. Kent Cty. Bd. of Adjustment, 2000 WL 33110109, at *3

(Del. Super. Ct. Oct. 31, 2000) (citing Mellow v. Bd. of Adjustment of New Castle
Cty., 565 A.2d 947, 954 (Del. Super. Ct. 1988)); see 29 Del. C. § 10142(d).

43 Wadkins v. Kent Cty. Bd. of Adjustment, 1999 WL 167776, at *2 (Del. Super. Ct.
Feb. 23, 1999).

44 Janaman v. New Castle Cty. Bd. of Adjustment, 364 A.2d 1241, 1242 (Del. Super.
Ct. 1976).

4 Mellow, 565 A.2d at 954.

14
The party seeking to overturn the Board’s decision has the burden of
persuasion to show that the decision was arbitrary and unreasonable.*° “If the
Board’s decision is fairly debatable, there is no abuse of discretion.”*” 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.** The Board must particularize its findings of fact and conclusions of
law to enable the Court to perform its function of appellate review.”

Discussion

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.’ 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,’' this Court, “made clear that the neighborhood

concerns are not enough to deny a permit.”°”

 

46 Mesa Commc'n Grp., 2000 WL 33110109, at *3.
47 Mellow, 565 A.2d at 956.
48 Janaman, 364 A.2d at 1242-43.
49 Profita v. New Castle Cty. Bd. of Adjustment, 1992 WL 390625, at *2 (Del. Super.
Ct. Dec. 11, 1992).
°° Pet’rs’ Op. Br. at 3.
5! Beatty v. New Castle Cty. Bd. of Adjustment, 2000 WL 972660 (Del. Super. Ct.
May 23, 2000).
>? Pet’rs’ Op. Br. at 15.
15
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.°> The appellant raised concerns regarding, among other
things, the detrimental effect on the property values of the adjacent landowners.’ In
affirming the Board’s decision, the court found that there was “substantial evidence
to support no detriment or injury to the community.”

First, the Beatty court found substantial evidence that there was a necessity
for the tower to ensure complete wireless communications, and to effectuate the
removal of another tower while simultaneously temporarily negating the need for
additional towers in the community.°° Moreover, the court in Beatty observed that
“Tsitting on a 7.8 [acre] of land, the tower would be set back considerably, limiting

9957

its visibility from the road and adjacent communities.”°’ The court also noted that a

160-foot communication tower already existed at the site for some time and,

 

3 Beatty, 2000 WL 972660 at *5.

4 Td. at *2.

°5 Though the Beatty Court applied the New Castle County Code - rather than the
Unified Development Code as in this appeal - it noted “[w]hile the terms
‘detrimental’ and ‘injurious’ are not specifically defined by the [New Castle County
Code] Code, its common usage would logically mean that the new use of the
property should neither substantially impair the integrity and character of the zoning
designation nor be harmful to the public's health or the welfare of the community.”
Beatty, 2000 WL 972660, at *5; see id. at *2 n.9 (“Since the application was received
in November, 1997, the Board used the standards of the New Castle County Code.”).
6 Td. at *4.

57 Id.

16
although adding 40 feet would undoubtedly make the tower more noticeable, “this
is not a situation where the County is attempting to dramatically alter what is already
on the property.” As a result, the Beatty court found that there was substantial
evidence that no detriment or injury to the community would arise from the tower

and opined the following:

When one clears the smoke over the controversy, this case is
what the Court would characterize as a “not in my backyard” concern.
The Court appreciates and understands this concern and is confident
that the Appellant's and his neighbors' feelings on the issue were sincere
and heartfelt. But, if the statutory requirements of detrimental or
injurious meant simply that a neighbor does not like a change in the
contour of his neighborhood, the standard seldom, if ever, could be met.

The Court understands that a decision of this nature by the Board
is normally never a popular one, and whenever an application of this
nature is filed, the adjacent landowners have a legitimate concern about
its effect on the values of their homes and the quality of their
community. But these concerns must be appropriately balanced with
the needs and welfare of the general community. Under the unique facts
of this case, the Court finds that there was substantial evidence to
support the Board's conclusions.””

The Board argues that Beatty is critically distinct from the case sub judice in
that the public comments regarding the tower’s impact on the surrounding
community were given less weight because there was an existing tower at the time

of the application.®° Conversely, the Board contends, the proposed tower in this

 

58 Beatty, 2000 WL 972660, at *4.
59 Id. at *5 (emphasis added).
6° Resp’t’s Answ. Br. at 20.

17
matter is a significant change to the character of the area, where it would stand more
than 100 feet over the trees and utility poles in the vicinity.°!

The Board cites to AT&T Wireless PCS, Inc. v. City Council of City of Virginia
Beach, to support its argument that large number of area residents testifying in
opposition to a permit application and petitions with hundreds of signatures attesting
to the negative visual impact on the surrounding area amounts to substantial
evidence to sustain a denial.°? Yet, as Antietam correctly points out,” the Virginia
Beach City Council is a state legislative body, not a federal administrative agency.”
In fact, as stated by the court in AT&T Wireless PCS, “one should keep the
distinction in mind when attempting to impose the ‘substantial evidence’ standard
onto the world of legislative decisions.”

Antietam cites to AT&T v. Sussex County Board of Adjustment*’ and requests

that the Court similarly “exercise its statutory power and reverse the denial and order

the Application granted in accordance with the express statements of a majority of

 

6! Td.

62 155 F.3d 423 (4th Cir. 1998).

63 Resp’t’s Answ. Br. at 18.

4 Pet’rs’ Reply Br. at 6.

6° AT&T Wireless PCS, Inc., 155 F.3d at 430.

66 Td. (“It is not only proper but even expected that a legislature and its members will
consider the views of their constituents to be particularly compelling forms of
evidence, in zoning as in all other legislative matters.”).

67 AT&T v. Sussex Cty. Bd. of Adjustment, 2015 WL 1975629, at *2 (Del. Super. Ct.
Apr. 30, 2015).

18
the Board.”°* Though Antietam cites AT&T for support of its requested relief, the

Court finds that case particularly applicable to the facts at issue in the present
appeal.

In that case, the appellant appealed the Sussex County Board of Adjustment’s
(“Sussex Board”) decision denying the appellant’s application for a special use
exemption to construct a 100-foot telecommunications tower.”? Under the
applicable Sussex County Code, once an applicant satisfies the other relevant
requirements, the special use exemption is to be granted unless the Sussex Board
finds that the exemption “will substantially affect adversely the uses of adjacent and
neighboring property.”’! Among other things, the appellant asserted that the Sussex

Board’s decision was not supported by substantial evidence for its finding that the

proposed tower would substantially affect the neighboring properties.”

 

68 Pet’rs’ Op. Br. at 17; see 9 Del. C. § 6918 (“The Court may reverse or affirm,
wholly or partly, or may modify the decision brought up for review.”).

6 In AT&T, the appellant appealed the Sussex Board’s decision denying the
appellant’s third application for a special use exemption. The first time, the
application was approved but later reversed on procedural grounds. The second
time, the Sussex Board’s denial was reversed because it applied the wrong standard.
Each time, the appellant had to file a new application because the statute provides
no authority to remand. For that reason, the A7&7 court found that the appellant’s
case was an appropriate instance for the Court to exercise its power under 9 Del. C.
§ 6918(f) to modify the Sussex Board’s decision.

AT&T v. Sussex County Board of Adjustment, 2015 WL 1975629, at *2.

"| Td. at *10.

? Td. at *3.

19
The appellant in AT&T argued 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” and denied that “any
aesthetic effects of the tower substantially affect[ed] use or enjoyment and argue[d]
that the tower is in keeping with the general character of the neighborhood.””? The
appellant also pointed out that while the 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.” Of
particular relevance here is the appellant’s argument 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.”” In discussing the admissibility of aesthetic concerns in zoning
decisions, AT&T court provided the following analysis:

While the law in Delaware is unclear, other jurisdictions have
found that aesthetic concerns may not be considered in zoning
decisions. In Omnipoint [Corporation v. Zoning Hearing Board of Pine
Grove Township], 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 they cannot
be considerations. However, “generalized concerns and conclusive
statements within the record about the aesthetic and visual impacts on

the neighborhood do not amount to substantial evidence” to justify
denying a special exemption. In Cellular Telephone Co. v. Oyster Bay,

 

B Td. at *8.
14 Td.
® Td.

20
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
founded on misinformation about what the finished project would look
like.’°

After combining the general nature of the aesthetic complaints from with the
lack of any concrete evidence of impact on use other than aesthetics, the court in
AT&T ultimately found that the record lacked substantial evidence to support the
Sussex County Board of Adjustment’s denial of the application.””

In the instant appeal, the Board in its Decision pondered whether:

[t]he 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.’®

As discussed, the Board ultimately declined to find as a matter of law that a
special use permit for a communications tower is exempt from considerations of

visual impact on the surrounding community when considering the evidence as to

whether “[t]he use is compatible with the character of the land in the immediate

 

76 Td. at *14 (citing Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Twp., 20
F. Supp. 2d 875, 880 (E.D. Pa. 1998); Cellular Tel. Co. v. Town of Oyster Bay, 166
F.3d 490, 495 (2d Cir. 1999)).

7 Td. at *14

78 Board’s Decision at 10-11 (emphasis in original).

21
vicinity.”’? In reaching this conclusion, the Board noted that “County Council might
adopt more specific language, or the Courts could assist to interpret currently
understood requirements for special use permits in this context.”*°

Federal Courts have widely recognized that “land-use regulation generally
affects a broad spectrum of persons and social interests, and . . . local political bodies
are better able than Federal Courts to assess the benefits and burdens of such
legislation.”’®' Nevertheless, the Court finds that there is no substantial evidence in
the record upon which the Board could properly deny the Application. The Board’s
Decision does not cite any specific facts as supporting its conclusion that the
proposed tower would be incompatible with the character of the land in the
immediate vicinity other than the “quality, specificity and evident sincerity of
community objections,” concerning the “limits of tolerable aesthetic changes to their
living environment.”*? Looking to the transcripts of the public hearings, the Court
likewise finds no evidence indicating the tower would not be compatible with the
character of the land. Of the local residents who testified at the hearing, their
testimony opposing the tower predominantly included concerns of: (i) the visibility

of the tower due to the sparse forest around the proposed site or the tower’s height;

 

7 Td. at 11; New Castle County, Delaware Code of Ordinances § 40.31.430(B)(3).
8° Board’s Decision at 11.

81 Acierno v. Mitchell, 6 F.3d 970, 975 (3d Cir. 1993) (citing Taylor Inv., Ltd. v.
Upper Darby Twp., 983 F.2d 1285, 1291 (3d Cir. 1993)).

82 Board’s Decision at 12.

22
(ii) increased flood risk; (111) potential harmful impact on property values; and (iv)
health and environmental effects of radio frequency emissions.** Yet, the Board’s
Decision states that it “gave no weight to testimony regarding drainage issues,
property values, or health and environmental effects of radio frequency emissions.”**

The most compelling arguments against the tower concerned its
incompatibility with the aesthetic of the area, including the testimony of one local
resident regarding several historical buildings in close proximity to the proposed
site.> Even so, as with the opponents in AT&T, the aesthetic concerns expressed by
the local residents in the record are vague and nonspecific.*° The tower is described
as a “nuisance” that will “pollute the visual integrity of [the] community.”*” In view
of the general nature of the aesthetic complaints from local residents together with
the lack of any concrete evidence of incompatibility other than aesthetics, the Court

finds that the record lacked substantial evidence to support the Board’s Decision

denying Antietam’s application for a special use permit.

 

83 See Tr. of June Public Hearing at 29-85.

54 Board’s Decision at 11.

85 See Tr. of June Public Hearing at 58-59, 80.

86 See ATRT v. Sussex Cty. Bd. of Adjustment, 2015 WL 1975629, at *14 (Del. Super.
Ct. Apr. 30, 2015).

87 Td. at 32, 85.

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Conclusion
For the forgoing reasons, the New Castle County Board of Adjustment’s
decision is REVERSED.
IT IS SO ORDERED.

Judge Calvin L. Scott, Jr.

24
