AT & T Wireless Services v. Mayor of Baltimore

SALMON, Judge. AT & T Wireless Services (“AT & T”) wants to build a telecommunications facility in the Ten Hills section of Baltimore City. The proposed facility will be composed of a 143 foot monopole with nine low-power antennas, a twelve-foot concrete pad for equipment cabinetry, and a twelve-foot chain-link fence. The tower facility was to be erected on property leased by AT & T from the Hunting Hills Swimming Club at 300 Knottingham Road.

The swimclub site is within an R-l zoning district, which is the most restrictive district in the city, permitting, as of right, only single-family detached dwellings and uses such as schools, libraries, and museums. The telecommunications facility proposed by AT & T is permitted in an R-l district provided that a conditional use permit is granted. 1 AT & T has been granted a license by the Federal Communications Commission to provide wireless telecommunications services in the Baltimore-Washington metropolitan area. In connection with the building of its wireless personal communication service (PSC) system, AT & T requires multiple antenna sites for radio links in that system. The proposed site, at the swimclub facility, is a critical component of AT & T’s nationwide wireless PCS system because it covers an important segment of Frederick Avenue, Edmondson Avenue, and the surrounding residential areas that are not currently covered by an AT & T facility.

AT & T applied for a conditional use permit to erect the tower facility with the Board of Municipal and Zoning Appeals (Board). The permit application was opposed by the Mayor and City Council of Baltimore City (the City) and by the Ten Hills Community Association (Ten Hills). The Board denied ⁶⁸⁴ the conditional use permit, and AT & T appealed the denial to the Circuit Court for Baltimore City. The circuit court, after a hearing, ruled, in pertinent part, as follows: [A] careful reading of the Board’s decision indicates that it never explicitly set forth what, if any, adverse effects of the Tower at the proposed site would be greater than the adverse effects at another location.

The decision does summarize the evidence, but it gives no reasoning or rationale for the Board’s ultimate decision and, in particular, does not apply the Schultz[ v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981),] standard. Under these circumstances, a remand is appropriate for the purpose of permitting the Board to make its required findings. The trial court went on to say, however, that there was sufficient evidence in the record, if believed, from which the Board could have found that the proposed tower facility “would cause an adverse effect upon adjoining properties in the Ten Hills community unique and different in kind than if it were located at another site in the area.” The trial court also said that there was no evidence to support AT & T’s claim that the Board, in denying the application, violated the anti-discrimination provisions of the Telecommunications Act of 1996 (the ‘Act’), and that the Act does not prohibit a remand of the matter to the Board so that the Board could apply the correct principles of law under Schultz v. Pritts. AT & T filed this appeal and raises five issues, which we have consolidated and rephrased for clarity: 1.

Did the Board apply the correct principles of law in reviewing AT & T’s application? 2. Were there facts developed in the record before the Board that would support a denial of AT & T’s conditional use permit? 3. Did the Board’s decision to deny AT & T’s application violate the anti-discrimination provisions of the Telecommunications Act of 1966? ⁶⁸⁵ 4. Does the Telecommunications Act of 1996 require this Court to compel the Board to grant the application, rather than remand the matter to the Board for further proceedings?

We shall answer the first two questions in the negative and reverse. It is therefore unnecessary to answer the final two questions. FACTS DEVELOPED AT THE HEARING BEFORE THE BOARD Jack Miglioritti, a senior project manager with D. Garvey Corporation, testified that he had researched suitable sites within the general ring or coverage area that required the tower facility. He selected the proposed site because, in his opinion, the dense woodland that surrounds the proposed site provides an ideal natural buffer between the site and the adjacent residences, causing a minimal amount of visual intrusion to the surrounding community.

He testified that he took into consideration, in selecting the site, the fact that adjacent residences are a “considerable distance” from the site. The trees that surround the area, although they, of course, vary in height, are approximately seventy-feet tall; the woodland is “dense” and “mature.” Another favorable attribute of the site, according to Miglioritti, was that access to it would require very little intrusion to the surrounding community. AT & T proffered, and the Board accepted, the testimony of Robert Warlock, a project manager with Daft, McCune, Walker, Inc., that the establishment, maintenance, and operation of the tower facility would not be detrimental to or endanger the public health, security, general welfare, or morals of the surrounding community and therefore satisfied the standards for special exceptions as set forth in Section 11.0-5a of the Zoning Ordinance for Baltimore City. Mr. Miglioritti also testified that in researching suitable sites for the tower facility he had contacted the Baltimore City Fire Department in an attempt to work out an agreement so that AT & T could “co-locate” its antennas at the fire depart- ⁶⁸⁶ merit’s proposed tower, which, if a special exception were granted, was to be located at the Edmondson High School, in an R-6 zone.

His efforts to lease property from the fire department was, however, unfruitful because the fire department did not respond to his proposals. A radio frequency engineer testified that AT & T needed to place their antennas in certain designated areas throughout Baltimore City in order to avoid coverage gaps or “dead spots” in its wireless PCS system. Seamless coverage through Baltimore is necessary to prevent a telephone user from experiencing a black-out (losing a phone call) or receiving a busy signal if a call is made into a “dead spot.” The witness testified that AT & T had already placed antennas in various locations throughout Baltimore City, but a coverage gap presently existed in the Frederick Road-Edmondson Avenue-Route 40 corridor. Therefore, a facility in the vicinity of the proposed location was needed.

The Baltimore City Bureau of Transportation and the fire department had no objection to AT & T’s application. Oakleigh Thorne, a real estate appraiser, testified for AT & T that installation of the tower facility would have no effect on land values in the surrounding residential area. Mr. Thorne told the Board that he had performed a study of land values in residential communities where similar transmission towers existed, including Fairfax County, Virginia, and Howard and Montgomery Counties, Maryland. Mr. Thorne testified that the residential communities of Fairfax Station in Virginia and Clearview Estates in Howard County had similar land property values as those that existed in the Ten Hills community that surrounded the proposed site.

Mr. Thorne said that the cellular transmission tower located in the Fairfax Station and Clearview Estates subdivisions had no effect on residential property values in those communities. He distinguished Fair-fax Station and Clearview Estates from the Ten Hills community, and the general area surrounding the proposed site, because no wooded buffer existed at the other locations to screen the standing tower from the views of adjacent property owners. Mr. Thorne testified that the proposed tower in the ⁶⁸⁷ Ten Hills community would be “the most isolated, completely buffered tower” of all the towers he studied. He also concluded that building of the tower facility at the proposed site would have no negative impact on residential property values in the adjacent community because the existing woodland provided a natural buffer between the proposed site and adjacent residences.

Other witnesses, on behalf of AT & T, testified that the proposed tower facility would be safe and structurally stable and would cause no detrimental effect to the surrounding neighborhood. The Baltimore City Department of Planning opposed the application for the conditional use and recommended that AT & T either seek an alternative location that would be less visibly intrusive to the community or co-locate the antenna on an existing tower facility in the surrounding area. Susan Williams, the Chief of Planning for the Baltimore City Planning Department, testified that the only reason her department recommended disapproval of the application was because some residents would see the proposed site from their homes. In Ms. Williams’s words: This particular location is extremely unique in its character.

It is a very bucolic setting. Even though you have seen proposals that show numerous trees through the area, interspersed with many of those trees are quaint, single-family homes. The area takes on a characteristic of probably one of the most rural areas in the City of Baltimore. There are homes directly on Nottingham Road and Apple Gate Avenue, and I think you will hear testimony directly from people who live in this area who will be impacted, who will see this tower from their homes, essentially.

It is, it is on this basis that the staff recommends disapproval. We don’t think this is like ever[y] other antenna site. And indeed, we have recommended approval of antennas in residential communities. The Director of the Department of Planning of Baltimore City, Charles C. Graves, III, submitted a letter to the Board in which he also objected to the conditional use permit.

He gave three reasons that he described as “land use concerns.” ⁶⁸⁸ First, the Ten Hill community is composed of “close to” two hundred plus homes, and the facility would be located “in the heart of that community” even though “there are less visually intrusive sites for the tower.” Second, residential lots are located “close to the site.” Third, the tower facility would remove five parking spaces from the swimclub parking lot. Although, as we have noted, Mr. Graves asserted that there were “less visually intrusive sites” for the tower, he did not say that there were any -within the R-l zone. Mr. Graves’s letter stressed that his department had in the past “worked diligently” with AT & T to locate sites for their antennas that were “the least visibly intrusive.” Yet, according to Mr. Graves, only once, out of seventy-two communication antenna applications submitted by AT & T and its competitors for review prior to the subject one, had the department recommended disapproval. Mr. Graves also pointed out that the Ten Hills Community Association supported “the co-location of the AT & T antennas” on the fire department’s proposed emergency tower at the Edmondson High School location.

At the hearing, a number of citizens who lived near the proposed facility testified against the grant of AT & T’s application. Arthur Johnson, who lives at 403 North Chapel Gate Lane, about three hundred feet from the site, testified that the proposed use would adversely impact upon his property. He testified that, except for the summer months when the foliage on the trees are in bloom, the grounds of the swimclub, which are adjacent to his residence, are clearly visible to the homes located on North Chapel Gate Lane and that the tower, when it is erected, would obviously also be visible when the impliedly deciduous trees had shed their foliage. Another witness, who lives in the Ten Hills community at 432 Drury Lane, testified that Ten Hills is an old and unique community where even the telephone -wires are hidden from view.

Telephone wires are at the rear of the homes rather than on the streets. The witness opined that the proposed tower, because of its size and visibility, would negatively ⁶⁸⁹ impact the area. Mary Beverunger, who also lives in the Ten Hills area, testified that if the Edmondson High School site was approved, AT & T would be able to use the tower constructed there and would not need to construct an additional tower at the proposed site. She opined that because there would be no need to construct a tower on Knottingham Road she opposed its construction.

Thomas Devlin, a representative of the Ten Hills Community Association, and Kerry Weil, a resident of Ten Hills, wrote to the Board and opposed the tower construction because of “concerns” about the proximity of the structure to the residential properties and its impact on property values in the community. On June 13, 1997, the Board issued its written opinion. It summarized the testimony of all the witnesses but made almost no findings of fact, including failing to define specifically the neighborhood of the subject property. The Board wrote: The Board, in making it’s [sic] decision to disapprove this appeal has considered the standards for conditional uses under Section 11.0-5a of the Zoning Ordinance listed below, particularly items 1, 4 and 12.

The Board is aware of the appellant’s testimony and the testimony of expert witnesses that the tower would not be detrimental to the health and safety of the community nor would it adversely affect real estate values or the aesthetic beauty of the area. The Board, in making its decision, felt that time is not a critical issue in the placement of the tower when there is an opportunity to co-locate the tower in another area and still satisfy the needs of the appellant and all parties involved. The Board felt that the placement of the monopole in the Ten Hills community and using the wooded areas as a buffer would only be seasonable at best and that there is a suitable site elsewhere in the area needed to be served. Each residential community, or any community for that matter, has it’s [sic] own unique qualities and characteristics distinctive of itself.

A use believed to be injurious at one site in a community to be served could very well be an asset at another site in the same community, therefore benefit[t]ing all parties involved. The Board is also aware of the ⁶⁹⁰ testimony from the Department of Planning stating that out of approximately seventy-three prior sites for towers/antennas, the Department of Planning was able to accommodate • seventy-two of those sites to the satisfaction of all parties involved. The Board feels that if the appellant works with the Department of Planning, a mutually agreeable site can be found. The Board went on to say that the proposed use would not menace or endanger the public health, security, general welfare, or morals.

It further stated that it had considered the twelve factors that it is required to consider under 11.0-5 of the Baltimore City Zoning Code. 2 Additional facts will be set forth in order to answer the questions presented. ⁶⁹¹ ISSUE 1 Did the Board apply the correct principles of law in reviewing AT & T’s application? Both parties to this appeal agree that the “correct principles of law” are those set forth in Schultz, supra. In Schultz, the Court of Appeals said: The special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption.

The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide. But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception use is arbitrary, capricious and illegal.

These standards dictate that if a requested special exception use is properly determined to have an adverse effect upon neighboring properties in the general area, it must be denied. Schultz, 291 Md. at 11-12 , 432 A.2d 1319 (second emphasis added). ⁶⁹² In short, the test, as developed in Schultz , is not whether a special exception is compatible with permitted uses in a zone or whether a conditional use will have adverse effects. Adverse effects are implied in all special exceptions. The standard to be considered by the Board is whether the adverse effects of the use at the particular location proposed would be greater than the adverse effects ordinarily associated with that use elsewhere within the R-l zone.

Mossburg v. Montgomery County, 107 MdApp. 1, 8-9, 666 A.2d 1253 (1995), cert. denied, 341 Md. 649 , 672 A.2d 623 (1996). As the Court of Appeals said