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New Cingular Wireless PCS, LLC v. Zoning Board of Adjustment of the Township of Hanover

A-5535-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; VARIANCES — A land use board can impose a landscaping maintenance requirement if the purpose is to create a buffer that mitigates the negative impact of a feature of the approved plan, such as a high fence, so long as the maintenance obligation is reasonably related to the objective sought to be satisfied.

A cellular phone service carrier applied for a variance to install twelve panel antennas on top of an existing water tower and a ten foot by 25 foot compound near the base of the water tower. The property was located in a residential neighborhood, adjacent to eleven single-family homes. The zoning board denied the carrier’s application and the carrier appealed. The lower court reversed and deemed the application approved, subject only to the zoning board’s consideration of reasonable site plan conditions for the property. After further hearings, the zoning board required the carrier to build a nine-foot fence around the compound. However, since the maximum fence height in a residential area was six feet, the board required the carrier to plant shrubs to soften the effect of having such a tall fence. In addition, the board required the carrier to maintain the shrubs and landscaping on an ongoing basis.

The carrier appealed to the lower court. It argued that requiring ongoing landscaping maintenance created an undue hardship since there was no water line near the property. The lower court reduced the carrier’s maintenance obligation to two years based on the municipal planner’s testimony that the plants only needed to be watered regularly for the first season. The lower court found that two years was a sufficient amount of time to make sure the plants were okay.

On appeal, the Appellate Division reversed in part. In doing so, the Court noted that the zoning board, in considering a variance application, may mitigate the negative impact of a proposed use by imposing reasonable conditions reasonably calculated to achieve a legitimate land use purpose. In this case, the Court found that the zoning board was confronted with a readily visible fence, one and one-half times the height permitted in residential neighborhoods. It noted that the municipal zoning ordinance permitted the zoning board to minimize the visual impact of high fences with supplemental plantings in nonresidential zones. Even though that section of the ordinance did not apply in a residential zone, the imposition of landscaping requirements was a logical condition for fences above the maximum permitted height. The Court also rejected the lower court’s limitation of the landscaping maintenance to two years. It found that the purpose of the landscaping condition was to buffer the negative impact of a high fence in a residential neighborhood. If the shrubs became diseased and died, then the fence would lose its buffer. Therefore, the Court reasoned that as long as the fence was present, the need for maintaining the landscaping was present. The Court agreed with the zoning board’s analogy that if one is required to provide lighting, he is also required to change the light bulbs.

Lastly, the Court rejected the carrier’s argument that the maintenance requirement was too burdensome because there was no water line near the property. It found that a watering truck would not be routinely required after the first year, and that the board’s planner estimated that a watering truck would be needed only about five times until the plants were established. The Court did not find that prohibitive. Lastly, it noted that the carrier had a person attending to the premises every four to six weeks and that same person could presumably monitor the conditions of the shrubs as part of his or her duties.


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