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American Tower, Inc. v. Township of Hope

A-1775-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; PRE-EXISTING USE—Just because the permit to use a long existing communications tower has expired doesn’t deprive the tower of its status as a pre-existing structure.

A phone company had received approval from a local zoning board to locate is cellular antenna on a tower for five years after the date of the approval. Five years later, the company filed an application with the municipality’s planning officials, requesting an extension of the earlier approval. The board decided that a new application was necessary because the township had adopted a revised zoning with new requirements, ordinance a year earlier. The board also imposed new requirements on the tower’s owner. It decided that it could impose such requirements on both the phone company and the property owner because, although the owner was not the applicant, it was reasonable for the board to “impose the burden on both the property owner and the applicant to work out [a condition to approval].” The board also reasoned that because the property owner had consented to the application, and because it would be responsible for maintenance and upkeep of the tower, the board had jurisdiction over it.

In response to this decision, the owner filed an action in lieu of prerogative writs challenging the imposition of the new requirements. It argued that the tower should have been considered a pre-existing use within the terms of the new ordinance, thereby making the aesthetics section of the new ordinance inapplicable. The lower court disagreed. It held that because the phone company’s original approval had expired and a new permit was required, the application did not fall under the ordinance’s exception for pre-existing towers. Consequently, the applicant was required to comply with the new ordinance. The lower court also found that the board had jurisdiction over the property owner because the property owner had consented to the application, and was a direct beneficiary of the requested relief.

On appeal, the Appellate Division reversed, holding that the tower needed to be considered pre-existing under the new ordinance. Specifically, the ordinance defined preexisting towers as structures “for which a construction permit . . . ha[d] been properly issued prior to the effective date of this subsection . . . [also] any tower or antenna that is presently a permitted use.” This particular tower had been issued a construction permit decades before the effective date of the new ordinance, had been built pursuant to that permit, and had remained structurally unchanged. In addition, the tower’s features had been considered as “permitted” before adoption of the new ordinance. The Court further held that the only permit that had expired was the phone company’s approval to locate antennas on the tower for a five-year period. Further, the Court found no basis to conclude that either the phone company’s request for an extension or its application for a variance had the effect of extinguishing the tower’s status as pre-existing. Therefore, the Court reversed the lower court’s decision and held that the tower need not comply with the new requirements.

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