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New Brunswick Cellular Telephone Co. v. Township of Woodbridge

A-3162-96T5 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING—A telecommunications tower is an inherently beneficial use. Therefore, a zoning board only has to weigh the effect of the particular tower. A board that fails to do so, or does without evidence, can not deny a needed variance.

A telecommunications company filed an application for a use variance to permit construction of a tower to hold antennas for transmitting cellular telephone communications. The variance was necessary due to the municipality’s restrictions on the height of structures and its requirements relating to the proximity of a tower to a residence. The municipality’s board of adjustment denied the variance twice, once after a lower court ordered the board to reconsider its original denial. After the second denial, the lower court ordered that the company’s application be granted. The board appealed, but the Appellate Division affirmed.

When a board considers an application for a use variance, it must balance the positive and negative criteria by identifying the public interest at stake and any detrimental effects. It must then seek to reduce the detrimental effects by imposing reasonable conditions and then, through a weighing process, determine if the grant of the variance would cause substantial detriment to the public good. Sica v. Board of Adjustment of Township of Wall, 127 N.J. 152 (1992). Because the Appellate Division previously had concluded that a telecommunications tower is an inherently beneficial use, the board only had to weigh the beneficial and detrimental effect of the particular tower. The Court found that the board had neither done this, nor complied with the directives of the lower court at the time it denied the variance for the second time. The Court did not conduct the weighing analysis required by Sica and it concluded - without any evidence - that a diminution of property values would result and the tower would be a substantial detriment to the public good.

Certification by the New Jersey Supreme Court was granted and the case was remanded to the Appellate Division in light of Smart SMR v. Fairlawn, 153 N.J. 309, 704 A.2d 1271 (1998).


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