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Kuryllo v. Parsippany-Troy Hills Zoning Board of Adjustment

A-0760-09T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING — A zoning board’s determination is presumed valid and the court’s role is to determine whether that decision is supported by the record or whether it was so arbitrary, capricious or unreasonable as to amount to an abuse of discretion, and a citizen who attended the meetings and made no effort to present evidence contrary to that presented by the applicant has no basis to challenge the manner in which the applicant presented evidence at the hearings.

A wireless carrier filed an application with a municipal board of adjustment to construct a 143 foot monopole to hold wireless communications antennas. The proposed site was vacant, but three years earlier the municipality had granted approvals for the building of an assisted living facility on the site. No construction ever began. The monopole would also hold antennas for two other wireless providers. The board held hearings over ten dates, spanning two years. As the zoning district was OS (Office-Service), a use variance was required. A height variance was also necessary as the pole’s height was thirty five feet in excess of the ordinance’s height limits. Additionally, bulk and dimensional variances were required because of side yard setback and minimum distance regulations.

At the hearings, the applicants presented testimony about gaps in coverage for all carriers in an area measuring one and a half miles square. Engineers and planners testified about the suitability of the proposed site for construction of the monopole. The applicants also presented testimony regarding their attempts to locate and acquire alternative sites for the monopole. No other sites were available, but an issue arose about the availability of vacant property owned by the municipality. The board refused to require further exploration of the availability of that alternative site.

The board approved the application, and granted the required variances and preliminary site plan approval. A citizen of the municipality filed suit challenging the board’s decision. The lower court held that the record was incomplete concerning the availability of the vacant site owned by the other municipality, and remanded the matter for exploration as to whether the other municipality was willing to sell or lease the site to the applicants for the monopole. Following remand, the other municipality’s council voted not to offer the alternative site. With that additional information added to the record, the board voted to re-approve the application. The same citizen then filed an amended complaint to set aside the decision. The lower court dismissed her complaint. She appealed, emphasizing that the monopole would be located within five feet of the proposed assisted living facility, without adequate vehicular access, and would present a danger to future residents of the assisted living facility.

The Appellate Division affirmed, holding that a zoning board’s determination is presumed valid and a court’s role is to determine whether the decision is supported by the record and whether it was so arbitrary, capricious or unreasonable as to amount to an abuse of discretion. Here, the Court found the citizen failed to provide a record of the board’s findings or either resolution approving the applicants’ proposal. As to the citizen’s challenge of the manner the applicants presented evidence about the suitability of the other municipality’s owned site, the Court said the citizen attended the meetings and made no effort to present contrary evidence. Thus, the Court concluded that the decisions of the board of adjustment and of the municipality’s council were not arbitrary, capricious or unreasonable.

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