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Bay Head Concerned Citizens v. Borough of Bay Head Planning Board

A-6201-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; NOTICES; BOARDS—Applicants for zoning variances can rely on the 200 foot mailing list furnished by a tax assessor even if it is wrong and alternate land use board members may be allowed to participate in board deliberations.

A planning board approved a variance to place wireless communication antennas on a water tank. The lower court affirmed the board’s decision. On appeal, the citizens opposing the variance first argued that the board lacked jurisdiction to consider the applicants’ development proposals because the applicant failed to serve all property owners within two hundred feet of the proposed site. Failure to provide this statutory notice of a hearing divests a board of jurisdiction to review an application. In this case, the applicants received from the local tax assessor a list of property owners within two hundred feet of the subject property. Those owners were served notice of the hearing. However, the opposition submitted a map that had been prepared by the applicants’ engineer showing the property owners within two hundred feet and claimed that the map showed more properties within the zone in question than did the tax assessor’s map. The opposition then alleged that none of these additional owners had been served with written notice.

The lower court held that there was no evidence that the names that appeared on the engineer’s map were shown on the tax rolls as the owners of those properties. It also held that pursuant to N.J.S.A. 40:55D-12(c), an applicant is entitled to rely upon information contained in property owner lists provided by a municipality’s administrative officers. The lower court then determined that the tax assessor could be considered an administrative officer as defined by the statute. Therefore, because the applicants relied on the lists given to it by the municipality, sufficient notice had been given.

The opposition also argued that the board erred by allowing nine members to vote on the application. They alleged that a statute clearly requires that consolidated land use boards sitting as boards of adjustment should consist of seven members, with five affirmative votes required for approval. The citizens argued that participation by the two alternate members tainted the vote. The lower court disagreed, holding that the application had received enough affirmative votes to pass because the final vote was seven to two, in the affirmative. In response, the opposition argued that the alternates’ votes could not simply be discounted from the total because their participation tainted the entire procedure. N.J.S.A. 40:55D-23.1, however, clearly permits alternate members to participate in all board matters, even when they are not allowed to vote. So, even if the board had been made up of seven members, the alternates would have still been entitled to participate in the deliberations. And the lower court noted again, that even if the alternates’ votes were discounted, sufficient affirmative votes remained. Consequently, any error that might have been caused by the alternates’ votes was harmless.

Finally, the opposition claimed that the applicants failed to satisfy the positive criteria for the grant of a use variance pursuant to N.J.S.A. 40:55D-70(d). In order to satisfy those criteria, the applicants were required to demonstrate a “special reason” for the variances by showing that the proposed wireless facility was particularly suited to the proposed site. The lower court held that the positive criteria were in fact met. The applicants testified that there were no existing wireless communications facilities in the municipality. An expert presented coverage maps showing existing signal levels as well as the levels expected from the proposed facility. Based on these studies, the expert concluded that each of the carriers applying for the variance had a significant gap in coverage that would be closed by the proposed tower. In addition, the proposed site was the only existing structure in the municipality of sufficient height to hold the applicants’ antennas. The Appellate Division held that because the board accepted the expert’s testimony and concluded that there was a need for a wireless facility, the essential question on appeal was whether the record adequately supported the board’s decision. It held that the facts supported the conclusion that the site was particularly suited for the proposed facility and that such a facility promoted the general welfare by improving wireless communications services in the community. Therefore, the Court held that the board did not abuse its discretion in finding that the applicants had satisfied the positive criteria of the statute.

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