Building of Bethany Beach Cell Tower Could Hinge on Meaning of 'Substantial'

Jeff Mordock

Delaware Law Weekly

The Delaware Supreme Court focused on the definition of the word "substantial" during oral arguments to determine if AT&T can construct a new cellular tower in Bethany Beach, Del. 

The debate occurred today before a three-justice panel composed of Justices Henry duPont Ridgely, Jack B. Jacobs and Randy J. Holland in New Cingular Wireless PCS (AT&T) v. Sussex County Board of Adjustment. The oral arguments were held at Widener University School of Law's campus in Wilmington.

Attorney Richard A. Forsten, a partner with Saul Ewing, told the justices that the Sussex County Board of Adjustment erred when it denied AT&T's application to build the cellular tower on top of an existing Bethany Beach water tower. Forsten, who argued on behalf of AT&T, told the high court that the Board of Adjustment, and the Delaware Superior Court, which affirmed the board's decision, denied the application because it created an "adverse effect" on the neighborhood where the tower would be located. However, Forsten said, under a Sussex County ordinance, a cellphone tower application can only be denied if it creates a "substantial adverse effect," and the impact of the cellular antenna would not be "substantial."

"The board left out substantial, which created a lower threshold," Forsten told the justices. "The board applied the incorrect legal standard."

Robert V. Wistil Jr. argued on behalf of the Sussex County Board of Adjustment. He told the court that defining "substantial" in this case was only semantics and the decisions of both the board and Superior Court were correct because they focused on the tower's potential adverse effects.

"Lightning strikes can hit a cellular tower, causing it to catch fire and fall on homes, which are less than 75 feet away," he said. "That creates the potential for catastrophic injury. That is not illusory."

For more, see the March 6 edition of the Delaware Law Weekly.