Posted by: Patricia Salkin | June 11, 2013

DE Supreme Court Reverses Adjustment Board’s Denial of Special Use Exception to Erect a Cell Tower

Cingular (which became AT&T during the pendency of this litigation) applied to the board of adjustment for a special use exception to construct a 100-foot cell tower. The exception would have been unnecessary if Cingular had chosen to co-locate its telecommunications equipment on existing, freestanding towers, antenna, monopoles, buildings, water tower/tanks and other similar structure. The Board had approved AT&T’s initial application, but their decision was reversed by the Superior Court due to the Board’s failure to provide notice of the hearing. At the new hearing, the members of the community made a strong showing and the meeting lasted more than five hours, after which the Board tabled the application until its next meeting the following month. At that next meeting the Board unanimously rejected the application after they determined that AT&T had not met its burden of proving that the proposed use would not affect adversely the uses of the adjacent properties. “According to the Board, AT&T did not prove a substantial need for a tower at the proposed location, or that existing structures within a two mile radius were not available for collocation. The Board was also not persuaded as to AT&T’s need for seamless service” AT&T appealed the Board’s decision to the Superior Court, which denied the appeal under the same standard used by the Board, holding that the applicant for a special use exception carries the burden of demonstrating the proposed use will not adversely affect the neighboring properties. AT&T appealed to the Supreme Court of Delaware.

The Supreme Court of Delaware reversed the Superior Court’s decision because the burden placed on AT&T to prove the use would not adversely affect the surrounding properties was a higher burden than the one required by Sussex County Code.  “Special use exceptions are permitted “if the Board finds that, in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property.””Using this standard, the Court said that ‘some’ adverse affect is not enough under the ordinance to deny a special use exception. Additionally, under the standard the Board had applied the AT&T, the carrier had the burden of proving the use wouldn’t be harmful and that there is a need with no viable alternatives. By requiring AT&T to prove no adverse affect, the Court held that the Board and the Superior Court had required a heavier burden of proof than required by law.

The County and its co-appellees the Sea Pines Village Condo Association of Homeowners, still argued that even if the incorrect legal standard was used, the ruling should not be reversed because AT&T failed to prove the nonexistence of existing, viable structures, within a two mile radius, suitable and available for telecommunications use. The Court rejected this argument because the County Code does not require and applicant seeking to build a cell tower to provide the Board with documentation showing that existing structures within a two-mile radius of the proposed location are not available for use. The Court also says AT&T had met the requirements of providing documentation stating why a wireless tower is needed at the proposed location. The Court was unable to remand the proceedings with orders on how to continue because Delaware law only allows the Court “to reverse, or affirm, wholly or partly, or modify the decision brought up for review.” The Court explained that due to the error of law in using an improper legal standard, they had to reverse the decisions in order for the application process to begin anew.

New Cingular Wireless PCS, a/k/a AT&T v. Sussex County Board of Adjustment, 2013 WL 1943987 (Del.5/9/2013)

This opinion can be accessed at

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