New Brunswick Cellular Telephone Company v. Township of Edison Zoning Board of Adjustment

300 N.J. Super. 456, 693 A.2d 180 (Law Div. 1997)
  • Opinion Date: February 7, 1997

MUNICIPALITIES; ZONING—Applicants seeking a variance for a permitted conditional use need not show that a suitable alternative location is available. A cellular communications facility is an inherently beneficial use.

The Zoning Board of Adjustment for the Township of Edison rejected a company’s application for a variance from the requirement that cellular towers not be located within 1,000 feet of any school or residential dwelling. The company appealed.

Regarding the standard of review, the Law Division stated that board decisions are presumed valid and may not be overturned if there is substantial evidence in the record, unless there was a clear abuse of discretion. However, a board’s determination or interpretation regarding a question of law is subject to de novo review. Since the cellular tower at issue was a permitted conditional use, it should have been reviewed differently from a variance for a prohibited use. Specifically, the Court found that the Board rejected the application in part because the company did not address whether a suitable alternative location was available. However, this issue was irrelevant and an alternative location was not required because the tower was not prohibited in the zone; it was a permitted conditional use. The Court found that more intrusive industrial uses, with greater negative impacts, were not subject to the 1,000 foot buffer requirement. The Supreme Court of New Jersey has enumerated a four step procedure for boards to take in assessing whether the grant of a variance will cause substantial detriment to the public good: (1) identify the public interest at stake, (2) identify any detrimental effect which would result if the variance were granted, (3) impose reasonable conditions on the use in order to reduce any perceived detrimental effect, (4) weigh the positive and negative criteria to determine whether, on balance, the variance would cause substantial detriment to the public good. Sica v. Board of Adjustment of Township of Wall, 127 N.J. 152, 603 A.2d 30 (1992). The Law Division found that the Board failed to comply with this procedure. In Sica, the Supreme Court stated that if the proposed use was inherently beneficial, the positive criteria are deemed to be satisfied as a matter of law.

Starting with the last part of the test, the Law Division determined that a cellular communications facility was inherently beneficial because it would fill the gaps in service coverage, make more coverage available, and provide benefits to local emergency squads. As for the negative criteria, the Board found that the tower would not be esthetically pleasing, and that because it would not comply with the ordinance, it would have a negative impact on the health, safety and welfare of the residents. The Law Division stated that the absence of credible evidence regarding these findings would be enough by itself to warrant reversal of the Board’s decision, but the Board also failed to set forth any factual basis for these conclusions, or weigh them against the benefits of the tower in that location. The Court also determined that these negatives did not outweigh the benefits of the tower. Further, the Court opined that the Board’s claim of impact upon the heath and safety of residents was an attempt to regulate levels of radiation, a function exclusively within the state’s jurisdiction. The Court concluded that the Board’s rejection was arbitrary, capricious and unreasonable and remanded with directions to approve the variance application, subject to site plan approval.