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New York SMSA Limited Partnership v. Zoning Board of Adjustment of the Borough of Tenafly

A-1152-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; TELECOMMUNICATIONS — Where a telecommunications company’s use variance application is not based on the Telecommunication’s Act, the proper test to satisfy the positive criteria is whether the use is particularly suited for that site without imposing any necessity for the applicant to show that the chosen site is the least intrusive site.

A telecommunications company appealed a municipal zoning board of adjustment’s denial of its application for a use variance to construct a cell phone tower on property owned by a church located within a residential zone. The lower court reversed the zoning board’s decision and the Appellate Division later reversed the lower court ruling. The telecommunications company filed a motion for reconsideration, arguing that the Appellate Division decision was based on legal and factual errors. The Court agreed and remanded the matter to the zoning board.

The Appellate Division noted that, in its initial opinion, it had found that in order to satisfy the negative criteria requirement to obtain a use variance, the telecommunications company had to prove that the variance could be granted without substantial detriment to the public good, and also that the variance was not inconsistent with the intent and purpose of the master plan and zoning ordinance. In its initial opinion, the Court found that the telecommunications company had failed to satisfy those criteria. In reviewing the motion for reconsideration, the Court acknowledged that it had applied the wrong law. The law it cited in its initial opinion did not apply to variances for telecommunications facilities. Rather, the applicable standard for a use variance requires a zoning board to weigh the positive and negative criteria and determine if, on balance, granting the variance would cause a substantial detriment to the public good.

The Court also acknowledged that it applied an incorrect statement of applicable law with respect to the positive criteria. In its initial opinion, the Court held that the telecommunications company was required to show that the proposed facility would fill the gap for telecommunications services in the least intrusive manner and that it made a good faith effort to investigate alternative technologies and alternate sites. Those criteria are applicable for a claim under the Federal Telecommunications Act, but since the telecommunication company’s challenge was not based on the Telecommunications Act, the proper test for satisfying the positive criteria should have been whether the use was particularly suited for that site without necessarily showing that it was the least intrusive site. It noted that requiring the applicant to disprove the possible existence of less intrusive sites is a daunting, if not an impossible task, because of the uncertainty of available sites as well as the uncertainty about physical variables that could make them unsuitable. The telecommunications company’s reasonable and good faith efforts to find alternative sites were relevant, however, in demonstrating that the site was particularly suited for constructing a cell phone tower.

As a result, the Court remanded the matter back to the zoning board for additional factual determinations as to the availability of other sites, to be analyzed under the applicable law as outlined in the Court’s opinion.

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