Opinion
C.A. No. 98A-05-001 WCC.
Submitted: September 24, 1999.
Decided: May 23, 2000.
Appeal from the New Castle County Board of Adjustment — AFFIRMED
Matthew Beatty; 813 Christopher Ct., Hockessin, DE 19707. Pro se Appellant.
John E. Tracey, Esquire; 800 North French Street, City/County Building, 8th Floor, Wilmington, DE 19801. Attorney for NCC Board of Adjustment, Appellee.
Janet Z. Charlton, Esquire, and Lisa Goodman, Esquire; Rodney Square North, 11th Floor, P.O. Box 391, Wilmington, DE 19899. Attorney for Delmarva Power and Light and Bell Atlantic Mobile, Appellees.
ORDER
Matthew Beatty (the "Appellant"), pro se, appeals the decision of the New Castle County Board of Adjustment (the "Board"), which granted a Special Use permit to Delmarva Power Light Company ("Delmarva") for the purpose of installing a taller communication tower at 7645 Lancaster Pike, Hockessin, Delaware. Delmarva and Bell Atlantic Mobile, Inc. ("Bell") moved to intervene after the Appellant's petition for writ of certiorari was allowed. Delmarva is the owner of the property known as 7645 Lancaster Pike, Hockessin, Delaware, who applied for the permit, and Bell is a tenant on the aforementioned property, who claims an interest. On June 30, 1998, this Court granted the motion and added them as Appellees. The Court has reviewed the parties' briefs and the record below and makes the following determinations:
Delmarva Power Light Co. is now Conectiv.
On July 8, 1999, this Court decided a series of motions filed by both the Appellant and Delmarva and Bell. See Beatty v. New Castle County Board of Adjustment, et. at., Del. Super., C.A. No. 98A-05-001, Carpenter, J. (July 8, 1999)(ORDER).
1. On March 26, 1998, the Board held a public hearing for the purpose of determining whether Delmarva's Special Use Application should be granted. Delmarva applied for the permit to add 39 feet onto an existing 161 foot communication tower located at 7645 Lancaster Pike, Hockessin, Delaware, in order to accommodate an 800 megahertz system.
Numerous witnesses testified for Delmarva as to the necessity of the site and how the new tower would not be detrimental or injurious to the community. Van Sommers, a senior real estate representative for Delmarva, testified that by allowing the new tower, another tower in the same area owned by Chesapeake Utilities would be eliminated because its equipment would be moved to the new tower. In addition, Mr. Sommers stated that during a February meeting with the umbrella civic group, Greater Hockessin Area Development Association ("GHADA"), Delmarva' s proposal was presented and GHADA voiced no objections to the proposed tower. Next, Jeffrey D. Martin, an electric engineer specializing in communications for Delmarva, testified that the new 800 megahertz communication system would be an improvement from the current system because it would enhance coverage. He also stated that the Federal Aviation Administration (the "FAA") gave clearance for the site. He further opined that the proposed tower was reasonable and necessary for Delmarva and that it would not be detrimental or injurious to the neighborhood. Next, Andrew Katz, radio frequency design engineer for Bell, testified that Bell had a reasonable need for the site because it would fill a needed gap in their service to the Hockessin area due to the unique topography of the area. Next, Carl Patterson, a professional engineer, showed how the new tower would look through the use of photo simulations. In addition, Dr. Kenneth Foster, an associate professor at the University of Pennsylvania, prepared a safety analysis of radio frequency emission and found that the site would not be a detriment to the neighborhood. In support, Dr. Foster stated that the maximum public exposure to emissions from the proposed site was below the Federal Communications Commission (the "FCC") limit, and if additional carriers were added onto the site, it would remain below FCC guidelines. Lastly, George Russell, a Hickory Hills resident, which is a community in the Hockessin area, spoke in support of the proposal.
GHADA is an organization consisting of representatives from the various civic and business groups in the Hockessin area.
The FAA stated that the proposed construction would not exceed FAA obstruction standards and would not be a hazard to air navigation.
The record also provided that according to the Telecommunications Act of 1996, the Board was precluded from basing its decision on the health effects of emissions from the site where the site complied with the FCC guidelines. Because this proposed site complied with the FCC guidelines according to Dr. Foster, the Board could not consider the health effects.
As a representative of Deerfield Civic Association, the Appellant spoke in opposition to the application. During his presentation, the Appellant raised issues regarding the sufficiency of the notification process, the need for the replacement tower, and the detrimental effect on the property values of the adjacent landowners. The Appellant also argued that if the application was not rejected, it should at least be postponed until questions could be resolved and a determination could be made of whether this particular site made the most sense to the community.
Deerfield is a neighborhood directly across Route 41.
Appellant handed out materials that he obtained off the Internet.
In addition, Eric Schwarz and Richard Mulski, residents of Deerfield, also spoke in opposition. Mr. Schwarz complained that he received notice on March 7, 1998, which was too late for an adequate preparation of the issues. Richard Mulski, who lives next door to Mr. Schwarz, complained of receiving no notification.
2. After considering all the testimony and the evidence presented, the Board found that there was a need for the proposed use of the lot and that this use would not be detrimental or injurious to the neighborhood or to the County. As such, it granted Delmarva's Special Use application to erect a 200 foot telecommunication tower and equipment cabinet within 500 feet of a residentially zoned district. Consequently, the Appellant appeals the Board's decision.
At the time of the application, the zoning of the subject property was M-2, which required a Special Exception because the distance from a residentially zoned property was less than 500 feet. However, with the adoption of the Unified Development Code ("UDC") on December 31, 1997, this property became an S, a suburban residentially zoned district, which would also have required a Special Use. Since the application was received in November, 1997, the Board used the standards of the New Castle County Code (the "Former Code").
3. This Court's role in reviewing a Board of Adjustment decision is limited to correcting errors of law and deciding whether substantial evidence exists on the record to support the Board's findings of fact and conclusions of law. Even if the Court would have decided the matter differently, if there is substantial evidence in the record to support the Board's decision, that decision must be upheld. In other words, when such evidence exists, this Court may not reweigh it and substitute its own judgment for that of the Board members who are viewed as having expertise in the matter.
Janaman v. New Castle County Board of Adjustment, Del. Super., 364 A.2d 1241 (1976), aff'd Del. Supr., 379 A.2d 1118 (1977).
Searles v. Darling, Del. Supr., 83 A.2d 96, 99 (1951).
Janaman, 364 A.2d at 1242.
4. First, the Appellant argues that the notification followed no logical approach and that reasonable efforts were not made to notify the appropriate adjacent property owners. In addition, the Appellant argues that notice was inadequate in that the posting of the property was not visible and notice should have been provided in two newspapers, as required by the Delaware Code.
The Appellant cited no specific Code provisions.
While the Code has subsequently changed, Section 2-257(b) of the New Castle County Code (the "Former Code") was the applicable source for notice requirements at the time of Delmarva's application. It provided:
See supra note 9.
(b) Application; public hearing; notice of adjoining property owners. Any person desiring to obtain the permission of the board for any purpose for which permission is required under chapter 40 of this Code or for any use not otherwise covered shall make written application therefor. The board shall cause public notice of the time and place of a public hearing on such application to be made and, in addition, shall make a reasonable effort to notify by first class mail all adjoining property owners to the property that is the subject of such application of the time and place of such hearing. After a public hearing upon notice as provided for in this subsection, the board shall render a decision.
New Castle County Code, § 2-257(b). For comparison, although not effective at the time of this application, the notice clause, Section 31.340 Notice of Public Hearings, of the UDC is more specific, which provides in part:
Except as required below, the Department shall be responsible for ensuring notice of a public hearing through newspaper, posted notice, and mailed notice for meetings of the Board of Adjustment . . .
****
B. Notice in Newspaper. The Department shall advertise all other applications in the legal notice section of the Saturday issue of the News Journal published in Delaware. Notice shall appear at least fourteen (14) calendar days prior to the public hearing date and shall contain the following information:
1. The type of application.
2. A short description of the proposed action.
3. A description of the parcel and the approximate street location or address.
4. The location, date and time of the public hearing.
5. Information on where full details of the application may be obtained, including the hours of availability and phone number. **** D. Mailed Notice. When a public hearing is required, the Department shall send a copy of the legal notice to the last known address of all property owners within one hundred (100) feet of the property no less than ten (10) days prior to the public hearing. . . .
E. Posted Notice. The Department shall post a public hearing notice on all subject properties at least ten (10) calendar days in advance of a public hearing. The notice shall be placed in a conspicuous location and shall be clearly visible to the public. . . .
During the hearing, a planner from the Department of Land Use, who explained the County's notice policy and procedure, stated that legal notice was sent to all adjoining and abutting property owners including adjacent residents in the Deerfield community, the property was posted, and notice was placed in the classified section of the Saturday News Journal. Although not a requirement in the Former Code, Delmarva also notified GHADA and even delayed the Board hearing in order to first present the proposal to this community organization. Notice of the GHADA February 16, 1998 meeting was published in the February 12, 1998 issue of the Hockessin Community News and specifically indicated that one of the issues scheduled for discussion was the "reconstruction of a Delmarva Tower in Deerfield" and that a representative of Delmarva would be present to answer questions.
The record provides a New Castle County Planning Department form listing adjacent property owners, which includes six property owners residing in the Deerfield community.
There was some confusion in the record as to whether Deerfield was a subscribing civic association.
The Court finds that notification complied with the requirements of the Former Code. The "public notice" requirement was satisfied by placing notice of the hearing in the News Journal, a paper of general circulation, in the Hockessin area. It appears that reasonable efforts were made to give notice to adjoining property owners by mailing notice of the meeting to them. In fact, the Appellant acknowledged receiving notification of the Board hearing. In addition, the Former Code does not require notification of every residence that could conceivably be affected by the application and thus not every resident in Deerfield was given personal mailed notice. Furthermore, under the Former Code, there was no specific time limitation for such notice. But the Court noted that one of the opponents of the application, Eric Schwarz, received notice 19 days before the hearing, which the Courts finds reasonable. As such, the Court finds that the County adequately complied with the notice provisions of the Former Code.
See Bethany Beach Volunteer Fire Co. v. Board of Adjustment of Bethany Beach, Del. Super., C.A. No. 97A-07-002, Graves, J. (Sept. 18, 1998) Mem. Op. at 13-14.
See supra note 8.
In addition, the Appellant argues that because the Record of Notifications was not present at the hearing nor subject to cross examination when the notification issue was raised, the Board should have postponed any vote until it was able to validate that the Code requirements had been met. But the Court finds this argument meritless. The Record of Notifications was included as part of the record. As such, it was considered by the Board, and the Court finds that the Code requirements had been met.
5. Despite the Appellant's next argument that a need for the new tower was not adequately shown and would be a detriment to the community, the Court finds substantial evidence to support the contrary. Section 2-259 sets forth the applicable Code requirements for a Special Use permit, which provides in part:
The board of adjustment, after public hearing, upon determining (I) that a proposed use on a specific lot or parcel is reasonably necessary for the convenience and welfare of the public and (ii) that the proposed use on the lot or parcel involved is not detrimental or injurious to the neighborhood or the county, may grant a special exception . . .
New Castle County Code, § 2-259.
The Board granted this application by stating in part:
Current needs dictate the installation of a higher tower for the 800 megahertz band which has been set aside for statewide communication and public safety. In addition to Delmarva utilizing the tower, three other groups will be served by it as well. One, the state police will be able to utilize lap-tower computers in their cars through the statewide communications system. Two, Bell Atlantic needs a tower to fill a gap in the Hockessin area. With the additional height and strength of the rebuilt tower, Bell Atlantic is able to co-locate thereon, thereby negating the need for a separate tower, and three, Chesapeake Utilities has a smaller tower in the vicinity that will be removed, resulting in this utility also locating on the tower.
(Bd. Dec. at 1-2.)
First, the Court finds substantial evidence that there was a necessity for the tower. There is little dispute that a taller tower was reasonably necessary to ensure complete wireless communications in the Hockessin area. Because of the unique landscape, the pre-application configuration was inadequate. In addition, the new tower would effectuate the removal of another tower and would, at least temporarily, negate the need to build additional towers in the community. While the Appellant questioned the utilities' conclusions that the tower was needed, there was no evidence in the record to contradict this testimony.
Notwithstanding the above, the Court notes that in reaching its conclusion, it did not accept the Board's finding that the tower would benefit the law enforcement community. While counsel suggested this need in its opening remarks, there was no evidence introduced at the hearing to support it. While this was probably a mere oversight by counsel in her limited presentation to the Board, the Board's reliance upon it was inappropriate. Despite this finding, the Court still finds that the other needs cited by the Board were sufficient to grant the permit.
The Court also finds that there was substantial evidence to support no detriment or injury to the community. Sitting on a 7.8 parcel of land, the tower would be set back considerably, limiting its visibility from the road and adjacent communities. The County Land Use Department stated, in recommending the application, "[t]he existing tower and associated buildings are set back a considerable distance from the road and given the topography of the site, the tower and buildings are in a hollow on the property so that the tower is not readily visible from the road." In addition, the site has had a 160 foot communication tower on it for some time. While adding 40 feet will no doubt make the tower more noticeable, this is not a situation where the County is attempting to dramatically alter what is already on the property. Furthermore, the site complies with the FAA and the FCC guidelines, and Dr. Kenneth Foster, a professor at the College of Engineering and Applied Science at the University of Pennsylvania, testified on the radio frequency safety of the proposed tower. His report introduced to the Board stated:
In addition, the Appellant's final arguments as to whether this was the best site or the general community's support are so general in nature without any support in the record that consideration of these arguments would be meritless.
Recommendation Report from Edward J. O'Donnell of the Land Use Department, dated March 25, 1998.
The maximum public exposure to emissions from the proposed cell site will be below 1 microwatts per square centimeter . . . at ground level, which is below the relevant FCC exposure limit by a factor of more than 500. These exposure levels are far below limits of US and major international standards including the International Radiation Protection Association, IEEE/ANSI C95.1, and the National Council on Radiation Protection and Measurements. The consensus of informed scientific opinion, as reflected in these and other accepted standards for human exposure to RF energy, is that such levels of exposure are far below hazardous levels.
Report by Dr. Kenneth Foster dated January 27, 1998.
Further, when the Appellant questioned the safety issue, the Board, relying upon Dr. Foster's findings, highlighted the fact that the National Telecommunications Act of 1996 prohibited state or local governments from regulating the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions where they have complied with the FCC standards. In spite of the Appellant's Internet articles, there was no credible evidence of a safety issue in regards to this construction.
See supra note 5.
While the terms "detrimental" and "injurious" are not specifically defined by the 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. The Court is convinced that there was sufficient evidence to support the Board's decision that this modification of an already existing tower would not substantially alter the zoning designation nor harm the public's health or welfare.
6. 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,
7. As a final note, the Court wants to caution the Board that it should be extremely sensitive to the community's concerns when issues of this nature are brought before it. While the Board has no obligation to delay a properly noticed hearing, a reasonable request should not be ignored. It is extremely important that the community's participation in this process be meaningful with a full opportunity to be heard. When the public perceives that the process is unfair, it undermines the Board's decisions and erodes the confidences of our citizens in their government. The Board should not forget that while it may find this administrative process to be customary and routine, it is often foreign and confusing to the general public who do not participate in it daily. While it will perhaps take a little more time, one's perception of being treated fairly will often avoid future litigation and will bring finality to the Board's decisions.
8. However, for the reasons set forth above, the Court AFFIRMS the Board's decision.
IT IS SO ORDERED.