New Cingular Wireless PCS v. Sussex County Board of Adjustment

RIDGELY, Justice: New Cingular Wireless PCS (now known as “AT & T”) filed an application with the Sussex County Board of Adjustment (“the Board”) for a special use exception to construct a 100-foot telecommunications monopole, or “cell tower,” on a commercially zoned property located at 32919 Coastal Highway, just outside of Bethany Beach. Collocation of telecommunications equipment on existing freestanding towers, antennas, monopoles, buildings or water towers/tanks are permitted without a special use exception. A special use exception is required before a cell tower may be erected within 500 feet of a residential zone. As required by the Sussex County ordinance, AT & T submitted documentation with its application showing that existing structures within a two-mile radius of the proposed location were not available for collocation. The Sea Pines Village Condominium Association of Owners, along with individual residents (collectively, “the Association”) who lived near the proposed location, opposed the application. The Board ultimately denied AT & T’s application. The Board cited in its decision a representation of Bethany Beach that Bethany officials had been told AT & T had no interest in using Bethany’s water tower as an antennae location. On appeal to the Superior Court, the court acknowledged in its opinion that while this appeal was pending “Bethany voted unanimously to reject AT & T’s request to use [Bethany’s] water tower as an antenna location” and that “Bethany was in fact unwilling to negotiate with AT & T.” The reasoning for this refusal to allow a collocation on the Bethany water tower was not explained by the trial court. .After .questioning “whether what took place with Bethany was ‘cricket’,” the Superior Court affirmed based on the record presented.2 In its written decision denying AT & T’s application, the Board concluded that AT & T “had not met its burden [under the Sussex County Code] of proving that the proposed use would not affect adversely the uses of adjacent and neighboring properties.” The Superior Court explained AT & T’s burden with similar language. But the Sussex County Code requires a lesser burden — special use exceptions shall be granted unless the Board finds “such exceptions will not substantially affect adversely the uses of adjacent and neighboring property.”3 AT & T argues that the Board’s decision must be reversed because the Board failed to apply the correct legal standard. We agree. Our precedent makes clear that “[a] Board’s decision based upon the proper legal standard is a prerequisite to the court’s performance of a review to determine the existence of substantial evidence.”4 The Board’s decision must be vacated as a matter of law so that AT & T may reapply for a special use exception with the Board applying the proper legal standard.5 [610] Factual Background AT & T planned to construct a 100-foot tall cell tower outside of Bethany Beach, Delaware in order to provide reliable wireless service — as required by its Federal Communication Commission license — in a two mile long gap from north to south along Route 1, centered near the Town of Bethany Beach. AT & T applied to the Sussex County Board of Adjustment for a “special use exception” to erect the proposed tower. AT & T’s proposed location was on property shared by a gas station, a fast food restaurant, and a convenience store. This property is adjacent to Sea Pines Village, which is a residential condominium complex. AT & T’s initial application was approved by the Board, but that approval was later reversed by the Superior Court due to the Board’s failure to provide proper notice of the hearing.6 During the period between the initial application, and the one at issue here, AT & T was permitted to erect a temporary tower on the property- Prior to making its decision on AT & T’s second application, the Board conducted a public hearing. Following a five hour public hearing, the Board tabled the matter until its meeting the following month. At that meeting, the Board voted unanimously to deny AT & T’s application after determining that AT & T had not submitted sufficient evidence to prove requisite elements of the ordinance. The Board found 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 also was “not persuaded as to AT & T’s need for seamless service.” AT & T appealed to the Superior Court. The Superior Court affirmed the Board’s decision, stating inter alia, that “[t]he applicant for a special use exception carries the burden of demonstrating that the proposed use will not adversely affect the neighboring property.”7 This appeal followed. Discussion When reviewing the Board’s decision, this Court applies the same standard to be applied by the Superior Court.8 The Board’s decision is reviewed for errors of law, and to determine whether substantial evidence exists to support the Board’s findings of fact and conclusions of law.9 We will not weigh the evidence, determine questions of credibility, or make our own factual findings.10 The Superior Court’s legal determinations, including questions of statutory interpretation, are reviewed de novo.11 AT & T expressly raised before the Superior Court the failure of the Board to apply the correct legal standard in this case.12 [611] Section 115-194.2 of the Sussex County Code sets forth the technical requirements for constructing a commercial communications tower. Subsection (A) of the ordinance provides that any tower erected within 500 feet of any residentially zoned lot requires a special use exception.13 Subsection (B) provides that collocation of telecommunication equipment is permitted without a special use exception on existing, freestanding towers, antenna, monopoles, buildings, water towers/tanks and other similar structures subject to site plan review by the Planning and Zoning Commission.14 Section 115-209 of the Code vests authority to grant or deny special use exceptions in the Sussex County Board of Adjustment.15 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.” 16 Here, AT & T claims that the Board’s decision must be reversed because the Board failed to apply the “substantially affect adversely” standard. Our decision in Hellings v. City of Lewes Board of Adjustment is controlling. In Hellings, this Court considered an appeal from property owners who had constructed a nonconforming home and sought a variance.17 To obtain a variance, the zoning code required a showing of an “exceptional practical difficulty.” The Board denied the variance, applying an “undue hardship” standard. On appeal, the Superior Court upheld the Board’s decision, finding that although the Board applied an incorrect standard, if the correct standard had been applied, the variance would have been denied. We reversed because: A Board decision based upon the proper legal standard is a prerequisite to the court’s performance of a review to determine the existence of substantial evidence .... [Hjaving determined that an error of law was made at the administrative level, the Superior Court was not free to review the evidence and apply a different, more lenient, legal standard because to do so would be to substitute its own judgment for that of the Board.18 We must reverse in this case as well. It is axiomatic that a statute or an ordinance is to be interpreted according to its plain and ordinary meaning.19 “Words in a statute [or an ordinance] should not be construed as surplusage if there is a reasonable construction which will give them meaning, and the courts must ascribe a purpose to the use of statutory language, if reasonably possible.”20 Special use exceptions are to be granted unless the Board finds the exception will “substantially affect adversely the uses of adjacent and neighboring property.” “Some” adverse affect is insufficient under the ordinance to deny a special use exception. By requiring AT & T to prove no “adverse affect,” the Board and the Superior Court required a heavier burden of proof than the ordinance demands. Adjectives do matter. By analogy, where the law requires a [612] showing of gross negligence, a showing of negligence is insufficient.21 Neither the Board nor a reviewing court has the authority to rewrite the ordinance as was done in this case to impose a heavier burden of proof upon the applicant than the ordinance requires. The Association argues that even, if the Board erred in applying the correct legal standard we still should affirm. The Association claims that AT & T failed to prove that there is no existing structures within a two-mile radius available for use. .We decline the Association’s invitation to address the sufficiency of the evidence before the Board. The sufficiency of the evidence on alternative locations is reviewed in conjunction with and not independent of the required analysis for the grant of a special use exception. Sussex County Code § 115-194.2(D) does require that applicants seeking to build a communications antenna “submit to the Board of Adjustment documentation showing that existing structures within a two-mile radius of the proposed location are not available for collocation.” The provision also requires the applicant to “include documentation substantiating the need for such tower at the proposed location.” 22 AT & T provided this documentation.23 AT & T also presented evidence— not discussed directly by the Board — substantiating the need for a tower at the proposed location. The Association’s argument necessarily invites judicial review of the sufficiency of the evidence before the Board. As in Hellings, the use of the proper legal standard by the Board is a prerequisite for judicial review of the sufficiency of the evidence. The Board’s reliance upon Bethany Beach’s representation about collocation on its water tower — which left the Superior Court questioning whether what took place concerning Bethany was “cricket” — further counsels against bypassing the administrative process intended by the General Assembly and the Sussex County government.24 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. Where, as here, the Board fails to apply the correct legal standard for a special use exception the Board’s decision must be vacated so a new application may be made. The Delaware Code only permits a reviewing court to “reverse or affirm, wholly or partly, or may modify the decision brought up for review.”25 The option of remanding is excluded. In Hellings, we explained that “[ajbsent the power of remand, such a reversal vacates the Board’s decision and the applicant may re-apply with the proceedings before the Board beginning anew.”26 Though Hellings considered a [613] statute authorizing review of a municipal Board of Adjustment, the statute authorizing judicial review of decisions of the Sussex County Board of Adjustment contains identical language. The Board’s decision must be vacated so that AT & T may reapply for a special use exception. Conclusion The judgment of the Superior Court is REVERSED, with instructions to REVERSE and VACATE the decision of the Board of Adjustment. Footnotes [2] New Cingular Wireless PCS a/k/a AT&T v. Bd. of Adjustment, 2012 WL 5578866 (Del.Super. June 18, 2012). [3] Sussex Cty. C. § 115-210 (emphasis added). [4] Hellings v. Bd. of Adjustment, 734 A.2d 641, 1999 WL 624114, at *2 (Del.1999). [5] AT & T also claims that the Board’s decision is not supported by substantial evidence, and it is arbitrary and capricious. As we find the Board applied the incorrect legal standard in denying the application, we need not consider these claims. [6] Sea Pines Vill. Condo. Assoc. of Owners v. Bd. of Adjustment, 2010 WL 8250842 (Del.Super. Oct. 28, 2010). [7] New Cingular Wireless PCS, 2012 WL 5578866 at *11 (citing Gutierrez v. Bd. of Adjustment, 2010 WL 2854293, at *3 (Del.Super. July 16, 2010)). [8] CCS Investors, LLC v. Brown, 977 A.2d 301, 319-20 (Del.2009). [9] Id. [10] Id. at 320. [11] Bd. of Adjustment v. Verleysen, 36 A.3d 326, 329 (Del.2012). [12] The question was raised before to the Superior Court by supplemental briefing, on January 20, 2012. Appellant’s Op. Br.App. A1565-1578 (herein “App.”). [13] Sussex Cty. C. § 115-194.2. [14] Id. [15] Sussex Cty. C. § 115-209. [16] Id. at § 115-210 (emphasis added). [17] Hellings v. Bd. of Adjustment, 734 A.2d 641, 1999 WL 624114, at *1 (Del.1999). [18] Id. at *2. See also Gilman v. Dept. of Planning, 2000 WL 305341, at *4 (Del.Super. Jan. 28, 2000). [19] Chase Alexa, LLC v. Kent Cty. Levy Ct., 991 A.2d 1148, 1151 (Del.2010). [20] Oceanport Indus., Inc. v. Wilm. Stevedores, Inc., 636 A.2d 892, 900 (Del.1994) (citations omitted). [21] See e.g. Browne v. Robb, 583 A.2d 949, 953 (Del.1990) (internal citation omitted), cert. denied, 499 U.S. 952, 111 S.Ct. 1425, 113 L.Ed.2d 477 (1991); In re Lear Corp. S’holder Litig., 967 A.2d 640, 651-52 (Del.Ch.2008); Gelfman v. Weeden Investors, L.P., 859 A.2d 89, 113-14 (Del.Ch.2004) (discussing the "substantial” difference between gross negligence and simple negligence). [22] Sussex Cty. C., Supplementary Regulations § 115-194.2(D). [23] App. A89-106. [24] See 9 Del. C. § 6902(a) (delegating zoning power to Sussex County); id. § 6913 (creating the Sussex County Board of Adjustment); Sussex Cty. C. Ch. 115, Art. XXVII (authorizing the Board of Adjustment to hear appeals for zoning variance and enforce the provisions of the Sussex County Code). [25] 9 Del. C. § 6918(f). [26] Hellings, 734 A.2d 641, 1999 WL 624114 at *3 (citing Searles v. Darling, 83 A.2d 96, 99-100 (Del.1951); Auditorium, Inc. v. Bd. of Adjustment, 91 A.2d 528, 532 (Del.1952); Bd. [613] of Adjustment v. White, 577 A.2d 754, 1990 WL 84693 at *2 (Del.1990); 1001 Jefferson Plaza Partnership, L.P. v. New Castle Cty. Dept. of Finance, 695 A.2d 50, 52-53 (Del.1997) (other citations omitted)).