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New Brunswick Cellular Telephone Co. v. Borough of South Plainfield

160 N.J. 1, 733 A.2d 442 (1999)

ZONING; TELECOMMUNICATIONS—Where a telecommunications tower has an FCC licence, is particularly suited for its site, and a variance for its siting would not be substantially detrimental to the public, use and bulk variances should be granted.

A telecommunications company sought use and bulk variances to construct a monopole for cellular communications. The governing statute required an applicant for a use variance to satisfy both the “positive criteria” and the “negative criteria.” Generally speaking, to satisfy the positive criteria, an applicant must prove that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use. To satisfy the negative criteria, an applicant must prove that the variance can be granted without substantial detriment to the public and also demonstrate, through an enhanced quality of proof, that the variance is not inconsistent with the intent and purpose of the master plan and zoning ordinance. An inherently beneficial use presumptively satisfies the positive criteria and eliminates the need to satisfy the negative criteria by an enhanced quality of proof. The zoning board concluded that the applicant had failed to meet its burden of proving that the monopole would not pose a substantial detriment to the public good and that the minimal benefit from the proposed monopole did not outweigh the detriment it imposed. Both the Law Division and the Appellate Division assumed that the monopole was an inherently beneficial use. Nonetheless, the Appellate division found that the zoning board was correct in its conclusion that the applicant should have used an existing tower and that increased use of digital service would eliminate the need for the monopole; and that the grant of the variance would substantially impair the development of the zone. A dissenter, however, concluded that the negative effect was minimal and that the proposed location in the municipality’s most permissive industrial zone was the most important factor in the case. The Supreme Court agreed with the dissenter. According to the Court, an FCC licence for a telecommunication tower generally establishes that the use promotes the general welfare. Consequently, the appeal centered on the suitability of the site and the satisfaction of the negative criteria. The applicant demonstrated that the tower was particularly suited for the site by proving a need for the facility at that location. Additionally, it was to be located in what seemed to be a particularly appropriate site, an industrial zone that permitted heavy and light manufacturing. Further, the Court found that uncontradicted evidence at the zoning hearing demonstrated that the monopole would not generate noise or traffic and would not impose any burden on municipal services. The aesthetic impact of a 90-foot monopole in an industrial zone would be minimal. Further, given the escalating demand for telecommunications services, the Court held that the zoning board erred in characterizing the public benefits from the monopole as “minimal.” The Court also believed that the zoning board reached an unsupported conclusion that the monopole would “detract and deter from the future development of the area in question.” In a dissent to the Supreme Court decision, one Justice opined that a telecommunications tower or monopole is not an inherently beneficial use and the fact that “America’s fast-paced and convenience-driven society demands immediate gratification” does not warrant a finding that wireless service facilities are inherently beneficial.

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