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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 907 September Term, 1996

ROBERT S. EVANS

v.

SHORE COMMUNICATIONS, INC., ET AL.

Murphy, C.J., Wenner, Davis, JJ. Opinion by Davis, J.

Filed: November 27, 1996

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 They

way of an expedited appeal pursuant to MARYLAND RULE 8-207.

- 2 present the following two questions for our review, restated as follows: 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? 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?

II.

FACTS1
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

We reproduced the agreed statement of facts verbatim since, pursuant to MARYLAND RULE 8-207, our review herein is based exclusively on that statement of facts in lieu of a record extract.

1

- 3 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 towers and an FAA [Federal Aviation Administration] acknowledgement of notice of receipt of the proposed construction of the tower. Mark Sapperstein was produced Petitioners and testified as follows: by

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

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