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Cellco Partnership v. The Zoning Board of Adjustment of the Township of Lawrence

A-4615-08T1 and A-5383-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; TELECOMMUNICATIONS — The mere possibility that a municipality might, at some time in the future, make a particular parcel of land available to a telecommunications company for a cellular tower does not make that hypothetical location into an acceptable alternative site and a zoning board cannot treat it as such.

A wireless carrier applied for a use variance for a 140 foot monopole cell tower on the site of a nursery, which itself was a non-conforming use in an environmental protection zoning district. The zone was intended to protect natural resources and to maintain as much open space as possible. Cell towers were not permitted there. The carrier also sought related bulk variances, as well as variances from local zoning provisions regarding impervious coverage, front and side yard setbacks, and building height. The board took testimony over seven days. A radio frequency design expert testified that the benefits of the proposed tower went beyond filling the coverage gaps of the various cellular providers; the tower would increase each other’s capacity and significantly improve the service provided by surrounding towers. A site engineer testified the pole would be disguised as a tree, and could accommodate five carriers. A real estate expert testified that a cellular tower would have no effect on the appreciation rate of surrounding residences. A planner testified the property was already occupied by a commercial nonresidential use, and the proposed use was benign from a land use perspective as it involved an unmanned, unoccupied facility that would be monitored continually from a remote location and visited only once every four to six weeks. The planner also stated that the pole would have no significant detrimental impact on the visual environment given that the pole would be disguised as a tree and a landscape buffer would be installed around the equipment compound.

A site acquisition specialist for the carrier testified of her efforts to secure alternative sites for the pole, specifically of her investigation of a site owned by the municipality about which she was told that the municipality was not interested in leasing space for wireless communications facilities. During this testimony, board members questioned whether the board should contact the municipality regarding the availability of that site. The attorney for the carrier reminded the board that the site remained unavailable, as the municipality had not taken any action to invite or solicit bid proposals for the rental of the site as a location for a telecommunications facility and monopole. Despite this, the board remained interested in the site and asked the radio frequency expert to provide his thoughts about the site. At the conclusion of all testimony, the board’s attorney presented a letter from the municipality’s manager to the board outlining his recommendation that the alternative site be offered for use as a cell tower location and that bid specifications be prepaid. The same day that this letter was written, the board found the application in front of it failed to satisfy positive criteria on the basis that an alternative site owned by the municipality was available and could address gaps in service.

The municipality never issued bid specifications for the lease of the alternative site until the lower court heard this matter more than two years after the board denied the application. The lower court allowed the parties to supplement the record, including the fact that the municipal council would consider the bids for award at an upcoming meeting. The lower court affirmed the board’s decision and dismissed the complaints. The principal reason for the court’s decision was the availability of this alternative site. The court rejected the argument that the existence of the alternative site was irrelevant because no bids had been accepted when the board denied the applications.

The carrier appealed, and the Appellate Division reversed, finding that the board’s improper consideration of the alternative site clouded its decision to deny the application. At the time the application was filed, the carrier was under the reasonable belief that this alternative site was not available. At the time of hearings on the application, the municipality had not prepared and published bid specifications for the rental of the property to house telecommunication facilities, nor had it taken any other official action indicating the potential availability of this site. It happened only at the last hearing date when the municipal manager discussed the possibility of placing the alternative site out to bid. The board then voted to deny the application, using this statement as a principal basis for its decision. According to the Court, this was an arbitrary, capricious, and unreasonable decision.

The Court also ruled the lower court had improperly permitted the board to supplement the record by including bid guidelines adopted by the municipal council more than two years after the board decided to deny the application. To the Court, this meant that the lower court had validated the board’s inappropriate consideration of the alternative site as available. The Court remanded the matter to the board to review the application on the record developed but without consideration of the alternative site.

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