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Mesquite Tower Consulting, LLC v. Zoning Board of Adjustment of the Township of Dover

A-4682-08T3 and A-4777-08T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; TELECOMMUNICATIONS; VARIANCES — Because wireless carriers are licensed by the Federal Communications Commission, their use of telecommunication towers is presumed to serve the public welfare and consequently deemed to be an inherently beneficial use for which relaxed variance standards are to be applied.

A tenant leased a portion of a marina property on which it sought to construct a 130 ft high cell tower in the shape of a flagpole. The tower was to be used by various cellular service providers. The marina was located with the municipality’s general business (GB) zone. Cellular towers were not a permitted use anywhere within the municipality. The tower’s proposed height exceeded the maximum permitted height for structures within the GB zone. So, the tenant and the wireless carriers applied for use and height variances. They only notified homeowners within 200 feet of the tax lots where the cell towers were to be located, as opposed to within 200 feet of the entire marina. The zoning board denied the application and the tenant and wireless carriers appealed. The neighboring property owners claimed that the application was defective because the applicants had failed to notify all property owners within 200 feet of the marina. The lower court agreed, and required the tenant and the wireless carriers to submit a new application. However, they were permitted to introduce, as evidence in the next round of hearings, the transcripts from the first application’s hearings.

Once again, the zoning board denied the application. Although a majority had voted in favor of granting the variances, the application was deemed denied because the required supermajority vote was lacking. The minority found that the applicant had not proven the positive criteria needed for a variance because they felt the marina site was not particularly well-suited for cell tower use. They also found the negative criteria were not overcome because, in their view, addition of a cell tower would result in a substantial loss in property values for the neighboring residential homeowners. Since the zoning board denied the use variance, it did not decide the applications for a height variance, bulk variances, and site plan approval.

The tenant and wireless carriers appealed, and the lower court reversed the zoning board and granted the use variance application. It remanded the matter back to the zoning board for findings of fact regarding the height and bulk variances and site plan approval.

The lower court ‘s finding was that the zoning board had acted arbitrarily and capriciously in denying the use variance because its denial lacked any rational basis and was unsupported by competent evidence in the record. The positive criteria for a use variance were met because the applicants were wireless carriers licensed by the Federal Communications Commission, and therefore the use was presumed to serve the public welfare. In addition, the site was particularly suited for a cell tower because it was located in the middle of an existing coverage gap, it was located in the GB zone, and the proposed tower was compatible with the existing marina since flagpoles are characteristically associated with a marina. The lower court also found that the applicants had made a reasonable, good faith effort to find a less intrusive and suitable suit, but none were available. As for satisfying the negative criteria, the lower court found that the zoning board’s minority improperly relied on a net opinion of the homeowner’s expert in claiming that a cell tower would substantially, negatively affect property values. The lower court found that the study could not be applied to the flagpole when the study was based on a lattice-style tower, one that was substantially higher than the flagpole tower presented to the board. Further, the lower court found that the zoning board had failed to balance the positive and negative criteria by not making any attempt to identify how many neighbors would be impacted by the cell tower and how they would be unduly burdened. The zoning board then adopted a resolution approving the use, height, and bulk variances, a minor site plan, and conditional use variances.

The homeowners appealed, claiming that the lower court erred in reversing the zoning board’s denial of the use variance. They contested the lower court’s finding that the marina was particularly suited to a cell tower use. Regarding the negative criteria, they argued that the lower court had improperly substituted its judgment for that of the zoning board. The Appellate Division disagreed and affirmed. In doing so, the Court noted that location of cell towers is governed by federal and state law. Under the Telecommunications Act, any decision by a state or local government or instrumentality to deny a request to construct wireless facilities must be supported by substantial evidence contained in the record. This standard is analogous to the “arbitrary, capricious, and unreasonable” standard under the Municipal Land Use Law. The Court noted that the New Jersey Supreme Court had never deemed cell towers to be an inherently beneficial use. Therefore, the applicant needed to establish the positive and negative criteria. The positive criteria can be satisfied if an applicant can show that the proposed use promotes the general welfare. Generally, an FCC license shows that the proposed use promotes the general welfare. In this case, the wireless carriers all held FCC licenses, therefore the proposed use met the positive criteria.

The Court also found that the site was particularly suited for use as a cell tower because it was located in the middle of a coverage gap and no suitable property was available elsewhere. It agreed with the lower court’s finding that the negative criteria were satisfied, finding that the zoning board improperly rejected the applicant’s expert’s opinion regarding reduced property values without a rational explanation, while summarily accepting the homeowners’ expert’s unsupportable opinion.


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