AWACS, Inc. v. Clemonton Zoning Board of Adjustment

160 N.J. 21, 733 A.2d 453 (1999)
  • Opinion Date: June 30, 1999

ZONING; NEGATIVE CRITERIA—Even where a use is shown to be beneficial or is inherently so, expert testimony is needed to show that the variance application will not violate the negative criteria.

This appeal questioned whether a board of adjustment was arbitrary, capricious or unreasonable in denying a use variance requested by a telecommunications carrier for a monopole. The site was adjacent to a major highway, but was near both a residential zone and a home improvement center. Neighboring residents objected to the application, primarily for aesthetic reasons. In support of the application, the telecommunications company presented an engineer who testified as to inadequate signal strength in the area and that although the ideal location for the monopole was about one half mile away from the proposed site, that location was in a residential zone and near a school. The lower court proceeded on the assumption that telecommunication facilities are inherently beneficial uses. However, the Supreme Court had determined in an earlier case that although such facilities are not inherently beneficial, the holding of an FCC license generally satisfies the requirement that the facility serves the public welfare. An applicant is required to demonstrate that its chosen site is particularly suited for the proposed use and that the application may be granted without violating the negative criteria. There was no testimony from a licensed land use planner or other qualified witness regarding the effect of the grant of the variance on the zone plan or zoning ordinance. To the Court, the record indicated that the applicant had satisfied the “positive criteria.” Finally, as with an inherently beneficial use, a weighing of a positive and negative criteria must show that granting the variance will not result in substantial detriment to the public good. To the Court, the appropriate resolution was to remand the matter to the zoning board for expert testimony upon that issue. Because there was no expert testimony as to the effect of the grant of the variance on the master plan or zoning ordinance, the Court did so, allowing the applicant and other interested parties to offer testimony concerning the “negative” criteria.