Evans v. Shore Communications, Inc.

DAVIS, Judge. Robert S. Evans appeals from the judgment of the Circuit Court for Talbot County, which had reversed the decision of the Talbot County Board of Appeals denying a special exception and variance for the construction of an antenna tower. Shore Communications, Inc. and Mark Sapperstein, through their agent John H. Plummer & Associates, Inc., had filed a petition with the Talbot County Board of Appeals (Board), seeking to secure a special exception to construct a communications tower to the height of 200’ and a variance to add an additional 100’ of height to the tower. The Board denied the special exception request by a three-to-two vote and the variance was denied by unanimous vote.

Petitioners then noted an appeal to the Circuit Court for Talbot County. The testimony taken during the hearing before the Board was lost by virtue of an equipment malfunction, necessitating the filing of a stipulation by the parties to the testimony pursuant to Maryland Rule 7-206(b). The circuit court, after hearing oral argument, affirmed the Board’s decision to deny the variance, but reversed the Board with respect to the special exception. The court then remanded the case to the Board to grant the special exception to construct the proposed 200’ tower.

Evans noted an appeal to this Court and appellees noted a cross-appeal from the circuit court’s affirmance of the Board’s decision to deny the variance. The parties elected to proceed by way of an expedited appeal pursuant to Maryland Rule 8-207. They present the following two questions for our review, restated as follows: ²⁸⁸ I. Did Petitioners carry their burden of proof and persuasion before the Board regarding the substantive criteria required by the Talbot County Zoning Ordinance for the granting of a special exception to construct a 200’ communications tower and, if so, was the evidence produced in opposition sufficient to make the issue fairly debatable?

II

Did Petitioners carry their burden of proof and persuasion before the Board regarding the substantive criteria required by the Talbot County Zoning Ordinance for the granting of a variance to increase the height of the proposed communication tower 100’ above the 200’ special exception limits and, if so, was the evidence produced in opposition sufficient to make the question fairly debatable? FACTS 1 The Board’s public hearing on October 2, 1995 regarding Petitioners’ Applications was attended by many persons from the neighborhood of the site of the proposed communication tower, most of whom opposed the erection of the proposed tower whether it reached to the 300’ height requested by the variance or the 200’ height requested by the special exception. In support of its Applications, Petitioners introduced four witnesses and numerous exhibits depicting the character of the neighborhood, the site of the proposed tower, views of other existing towers in Talbot County, a list of previously granted special exceptions for towers and tower height variances, design drawings of the proposed tower, various letters from public agencies favoring the proposed tower, a qualified expert real estate appraiser’s report concluding that the proposed tower will not diminish neighboring property values, various published industry reports relating to health and safety issues and radio frequency electromagnetic fields associated with communication ²⁸⁹ towers and an FAA [Federal Aviation Administration] acknowledgement of notice of receipt of the proposed construction of the tower. Mark Sapperstein was produced by Petitioners and testified as follows: He is one of the Petitioners and the President of Shore Communications, Inc., the other Petitioner.

Shore Communications, Inc. (“SCI”) is a corporation engaged in constructing a network of radio communication towers on the Eastern Shore of Maryland. The network of towers will be utilized by various private and public companies involved in the transmission of radio communication signals for use by cellular telephones, paging devices and other similar radio transmission equipment. SCI has also built towers in several locations on the Western Shore. Mr. Sapperstein testified regarding all aspects of the substantive criteria required by the Zoning Ordinance of Talbot County (“ZOTC”) as conditions for approval of special exceptions and variances.

He testified that the location of the proposed tower was chosen so it would not be within three (3) miles of any other tower in the county, a prohibition created by § 19.4 of the Zoning Ordinance. The request for the variance was required because of the 200’ height limitation for communication towers as set forth in § 19.10(x)(l)(IV) of the Zoning Ordinance. The proposed tower will be erected on the land of Fred Johnson located at the intersection of Longwoods Road and U.S. Route 50, slightly north of Longwoods. The location of the property is shown on several exhibits presented by Petitioners and admitted as Petitioners’ Exhibit Nos. 1,2,8 and 9.

This location was also chosen because (1) it will be able to serve the most useful purpose in the network of other towers utilized by the communication companies seeking use of Petitioners’ proposed tower; (2) the chosen site is the highest elevation in the general area which allows the tower height to be reduced from that which would be required if constructed on a lower elevation; (3) the proposed location is nearly equidistant from two nearby village ²⁹⁰ centers, Skipton and Longwoods, which are relatively dense residential areas; (4) the proposed location is adjacent to a dense grove of tall trees which will create a visual buffer of the lower portion of the tower on its west side; (5) the proposed location is adjacent to Maryland State Route 50, a heavily-traveled four lane highway where property values will least likely be affected and residential activity least interrupted; and (6) the proposed location is adjacent to existing electric power lines running parallel to Maryland Route 50 and rising over 100’ in height, thus reducing the visual impact of the height of the proposed tower on the neighboring properties. The tower will be a 3-legged, free-standing lattice-type metal tower constructed in accordance with the design concepts displayed on Petitioners’ Exhibits No. 7 and No. 20. Exhibit Ño. 20 is a photograph of a tower similar to the one proposed which is located near Wye Mills, Maryland. Petitioners’ Exhibit No. 7 is an engineered design drawing showing the proposed construction features of the tower.

The structure will be set in a concrete base buried deep in the earth. There is no risk that the tower will tip over. The proposed site of the tower is a five acre +/parcel of agricultural use land which will be leased by Petitioners from Fred Johnson. The tower will utilize a very small portion of the parcel for a building pad approximately 100’ x 100’ where the tower and three equipment buildings will be constructed.

The pad will be improved by a chain-link fence for security purposes. Plantings will be placed around the exterior of the fence as a visual buffer. The buildings will house various appurtenant equipment required for transmission and receipt of radio signals. The tower and buildings will be accessed by a private farm lane leading from the Longwoods public road and located entirely on the rented parcel.

It will not be open to public use. Mr. Sapperstein used Petitioners’ Exhibit No. 1, an aerial photo of the neighborhood, to point out the location of the proposed tower relative to various landmarks and homes owned by persons opposing the Application. The exhibit ²⁹¹ clearly depicted the character of the neighborhood and showed the Village of Longwoods as well as the home of Respondent, Robert Evans. Petitioners’ Exhibit No. 9 was introduced to show the location of the proposed tower as being in an RAC [Rural/Agricultural Conservation] zone where it is permitted as a special exception.

The proposed site will not be in an area protected by the critical areas or non-tidal wetlands regulations. Mr. Sapperstein testified that locating the tower near U.S. Route 50 would produce the optimum performance for transmission of the radio signals and would be least interruptive of residential and agricultural uses in that area of the County. The tower will be inspected and maintained by Petitioners’ personnel on a periodic basis. It will bear such lighting fixtures as the U.S. Federal Aviation Administration (“FAA”) may require for assuring the safety of the tower and passing aircraft.

There will be moderate lighting provided at the base of the tower for the convenience of Petitioners’ personnel inspecting the tower at night. The entry gate to the pad site will be locked at all times when personnel are not on site. The premises will be secured from intrusion by trespassers by a chain-link fence and an alarm system. Three communication companies have currently subscribed for space on the tower.

It will have the potential of accommodating three other users for a total of six users. Mr. Sapperstein introduced Petitioners’ Exhibit No. 3 which is a “Path-Pro” diagram displaying a gap in transmission coverage for one of the subscribing users which is transmitting signals in Talbot County. The diagram also shows the curative effect if the proposed tower is permitted. He explained that the location of a tower in a network scheme such as is being organized by Petitioners is a very delicate process which must accommodate the needs of the several users of the tower as well as complying with the Zoning Ordinance prohibition against locating a tower any ²⁹² closer than three (3) miles to an existing tower.

The location proposed for the tower will accommodate the needs of various state and local agencies such as the Emergency Management Agency and the Emergency Medical Services. Mr. Sapperstein described the nature of the radio waves that will be transmitted and received by the equipment mounted on the tower. He introduced Petitioners’ Exhibits No. 16, 17 and 19, representing various articles describing radio frequencies and answering questions regarding interference with television reception. He explained that there will be no potential for explosion or fire resulting from the equipment kept on the premises because the electrical energy levels of the equipment are very low.

There would be no propensity for endangerment of public health or safety resulting from construction of the tower because the tower will be located in the center of the 5-acre parcel allowing ample clearance of safe distance for tipping or breaking should either occur, however unlikely. Use of the tower by local agencies will enhance the performance of the local police and fire companies and other public services which depend on radio transmissions during the performance of their duties. There will be no requirement for water and sewer service to the premises. There will be no special requirement or burden placed on local police or fire agencies to secure or protect the premises.

Access to the premises from Long-woods Road will be by a private lane and Petitioners’ personnel will visit the premises infrequently so there will be no adverse impact on pedestrian or vehicular traffic using Longwoods Road or U.S. Route 50. The type of vehicular traffic using the lane will not be such as to cause any nuisance effects such as dust, noise or vibration. There are several other towers in the County which exceed the 200’ height limit. He explained that although the mere fact that there are other towers exceeding 200’ does not justify the granting of the variance in this case, the very existence of other towers exceeding the 200’ limit, strongly suggests that the legislated limit of 200’ is flawed ²⁹³ and not reasonable under the circumstances of today’s communication requirements.

He also testified that he did not believe that granting a variance in this case would confer upon Petitioners any special privilege not enjoyed by others in the same zone because the County Council will recognize soon that it must increase the allowable height of communication towers to avoid a proliferation of towers resulting from the steady increase in demand for this quasi-public utility service. He also testified that the requested variance is not the result of any conditions or circumstances which result solely from Petitioners’ actions. The need for the variance results from the general public’s increasing demand for more communication service on the one hand, and the strict limitation of one tower per three (3) mile radius. With the potential number of towers in the County limited by the three (3) mile regulation, the only means of fulfilling the demand for space to mount transmission equipment is to extend the towers beyond the 200’ limit.

According to Mr. Sapperstein, the granting of the variance will have no adverse effect upon water quality or impact on fish, wildlife or plant habitat located in the vicinity of the proposed tower. Finally, Mr. Sapperstein opined that the County Council had arbitrarily created an unrealistically low height limit on these towers because that limit will not necessarily serve or protect any public interest or prevent any potential harm to the public at large. If aesthetics is the motivation for the 200’ limit, the limit chosen would seem meaningless when it is recognized that an increase of 100’ on an existing 200’ tower will cause an insignificant increase of visual impact. Fred Johnson was produced by Petitioners and testified as follows: He is the owner of the property upon which SCI proposes to construct its communication tower and that he has leased the five acre parcel to SCI for that purpose.

His personal home is located adjacent to the proposed site of the tower ²⁹⁴ and he has no objection to the tower as proposed. He candidly testified that had he known there was going to be so much opposition from the people in the community, he would not have leased his property for this purpose. Eugene Bidun was produced by Petitioners and testified as follows: He testified that he is the Director of the Maryland Institute for Emergency Medical Services System which is located in Baltimore, Maryland. His agency is responsible for all hospital-to-ambulance and medivac communications in the State of Maryland.

His agency has had the privilege of utilizing free space on towers constructed by Petitioners throughout the State of Maryland. He confirmed that he wrote to the Board recommending that the proposed tower be allowed at the 300’ height so that his agency will receive better service in the north and east portions of Talbot County. He described his familiarity with Petitioners’ networks and described their services as being dependable and beneficial to his agency and to the community at large. William Kleppinger was produced by Petitioners and testified as follows: Mr. Kleppinger was accepted by the Board as an expert witness on real estate appraisal matters.

He introduced a report prepared by himself dated September 24, 1995 which analyzes and describes the impact the proposed tower will have on the value and use of properties located in the near vicinity of the proposed tower. He also introduced various photographs which he took of towers located in Talbot County. In his opinion, the towers located elsewhere in the County have had no negative impact on adjoining property values. He concluded that Petitioners’ communication tower at the proposed site will have no adverse effects on real estate values in that neighborhood above and beyond the effect that is inherently associated with the location of a tower such as this any where in the RAC zones of the County.

The following exhibits were introduced and received in evidence by the Board on behalf of Petitioners: ²⁹⁵ • Aerial photograph of the site and neighborhood. • Map of Talbot County. • Chart showing coverage of signals from tower. • Letter dated August 4, 1995 from the Director of the Maryland Institute for Emergency Medical Services System to the Board of Appeals. • Design drawing of proposed tower. (Same as Board’s Exhibit No. 11). • Copy of Chart from Talbot County Comprehensive Plan showing location of proposed tower. • Copies of Chart showing the site of proposed tower in the RAC zone. • Consultant’s report prepared by Mid Shore Appraisal Services dated September 24,1995. • Listing of previous special exceptions and variances granted by the Board for communication towers. • Letter dated September 29, 1995 from John H. Plummer, President, John H. Plummer & Associates, Inc., to the Board of Appeals indicating that in connection with this application he is acting as the authorized agent of Shore Communications, Inc. and the property owners. • Mounted photographs showing other towers existing in Talbot County. • Photocopy of a report concerning health and safety issues related to radio frequency electromagnetic fields emitted by communications towers similar to the one proposed by Petitioners. • Photocopy of a report concerning the potential for television reception interference from communications towers. • Acknowledgement from the Federal Aviation Administration of receipt of a Notice of Proposed Construction of the proposed tower. • Photocopy of a report indicating that exposure to radio frequency energy from a tower similar to the one proposed by Petitioners is below the maximum permissible ²⁹⁶ exposure set by the American National Standards Institute. • Chart indicating the relative power levels emitted form [sic] various types of towers, ranging from UHF television towers to Cellular towers. Thomas Wyman, a nearby property owner, requested the Board to be allowed to comment on Petitioners’ Application. He indicated that he had obtained signatures on a Petition from approximately fifty people in the Longwoods area, all in opposition to the tower.

The Petition was submitted to the Board as Protestants’ Exhibit 1 over the objection of Petitioners’ counsel. The Petition pointed out that the TCZO does not permit antenna towers in excess of 200’ as requested by Petitioner. Mr. Wyman indicated that he was opposed to the tower because of the FAA required lighting and the impact of a 300’ tower on property values and the scenery in this area of large and expensive farms in an RAC Zone. Also, Mr. Wyman stated that Petitioner had not demonstrated a need for the proposed tower.

William Callahan, farm manager for Robert Bell, Forest Landing Farm, a 1,000 acre estate, requested the Board to be allowed to comment on Petitioners’ Application. He stated that he and Mr. Bell were opposed to it because the lights (especially required strobe lights that blink at night) on a nearby tower could not be shielded due to FCC requirements, which would create a nuisance from their prospective. Charles Ted Taylor, a nearby property owner, requested the Board to be allowed to comment on Petitioners’ Application. He voiced his opposition to the tower as being unsightly in the rural estate setting of the area and that he felt it would impact adversely on property values.

Mr. Taylor also suggested that there are currently an adequate number of antenna towers in Talbot County. Theresa Newman, a nearby property owner, requested to be allowed to comment on Petitioners’ Application. She was opposed to the tower. She stated that one cannot landscape a tower and that it would be unsightly from her prospective ²⁹⁷ [sic] in a very scenic area of the county adjacent to U.S. Route 50.

John Roselius, farm manager for Robert Evans, owner of the nearby Winter Run Farm, was produced by Respondent and testified as follows: He stated that they operate a very complex and extensive horse breeding operation on nearby Winter Run Farm, which was chosen by Mr. Evans for horse breeding due to its natural and quiet rural setting. He stated that the tower would not only destroy the scenery and character of the area, but will disrupt their horse breeding operation due to the very temperamental nature of thoroughbred horses when subjected to such changes, as the introduction of blinking lights all night on a communications tower. He said such lights would bother mares in fold [sic] and cause a loss of revenue to Mr. Evans. Also, Mr. Roselius stated that property values would most assuredly be affected by the tower and finally that he frequently used his cellular phone at all hours and had experienced no problems with communications in the area.

Mr. Roselius testified that he had moved here from Wyoming to conduct the horse breeding operation and reminded the Board that once scenic areas such as this are lost, they cannot be recovered in the future. At the conclusion of the hearing, Respondent, Robert Evans, through counsel, presented a Memorandum in Opposition to the Request for Special Exception and Variance which pointed out that the general purpose of the Zoning Ordinance is to preserve the existing rural character and quality of life of Talbot County and that the location of the proposed tower is squarely within one of the more rural and estate areas of the County, having been zoned RAC (Rural/Agricultural Conservation). Under the Ordinance, any development in this district must conserve and protect agricultural lands and preserve the rural character of the County through the conservation of open space and agricultural lands as required by the qualitative mandate of the Comprehensive Plan. ²⁹⁸ Finally, the Memorandum called attention to the jurisdictional limitation on the authority of the Board. The Ordinance specifically states that the Board may not legalize any violation of the Ordinance (e.g., a tower in excess of 200’) nor may the Board amend or change the Zoning Ordinance or Zoning Maps (Sec.l9.14(b)(5)).

A 300’ tower in the RAC Zone clearly exceeds the limitation of authority of the Board in this case. The Board permitted cross-examination of witnesses by counsel for the respective parties. STANDARD OF REVIEW We said recently in Umerley v. People’s Counsel, 108 Md.App. 497 , 672 A.2d 173 , cert. denied, 342 Md. 584 , 678 A.2d 1049 (1996) that [t]he order of a county zoning authority “must be upheld on review if it is not premised upon an error of law and if [its] conclusions ‘reasonably may be based upon the facts proven.’ ” Id. at 503, 672 A.2d 173 (quoting Ad+Soil, Inc. v. County Comm’rs of Queen Anne’s County, 307 Md. 307, 338 , 513 A.2d 893 (1986)). In chronicling other guiding principles regarding the review of an order of a county zoning authority, we noted that the zoning authority must properly construe controlling law (citing Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287 , 96 A.2d 261 (1953)); that the action of the zoning authority is “fairly debatable” if based on substantial evidence (citing Northampton Corp. v. Prince George’s County, 273 Md. 93, 101 , 327 A.2d 774 (1974)); and that the fairly debatable test “accords with the general standard for judicial review of the ruling of an administrative agency, which [is] defined as “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached; this need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.’ ” (citing Board of County Comm’rs v. Holbrook, 314 Md. 210, 218 , 550 A.2d 664 (1988)).

We noted that in Ocean Hideaway Condominium Ass’n. v. ²⁹⁹ Boardwalk Plaza Venture, 68 Md.App. 650, 665 , 515 A.2d 485 (1986), we had held that the zoning authority decision was not fairly debatable, and thus was “arbitrary, capricious and a denial of due process of law” because there was no substantial evidence to support the factual findings of the zoning authority. We held, in Umerley , that the application of the standards of review set forth required a three-step analysis enunciated by us in Comptroller v. World Book Childcraft, Int’l, Inc., 67 Md.App. 424 , 508 A.2d 148 , cert. denied, 307 Md. 260 , 513 A.2d 314 (1986): 1. First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order “is premised solely upon an erroneous conclusion of law.” 2.

Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.... 3. Finally, the reviewing court must examine