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New York SMSA Limited Partnership v. Board of Adjustment of the Township of Bernards

324 N. J. Super. 149, 734 A.2d 817 (App. Div. 1999)

ZONING; VARIANCES—Whether or not its use is inherently beneficial, an applicant for a variance must demonstrate that there are no other suitable or satisfactory sites that could satisfy its needs.

A cellular telephone company sought a variance for a tower that was alleged to be a necessary part of the “seamless” network of telephone reception which it was creating for the users of its service. The Board of Adjustment denied the variance and the lower court reversed, remanding the matter to the Board to consider “the imposition of reasonable conditions,” presumably with a view toward mitigating whatever adverse effects might otherwise flow from the variance. The Board imposed certain conditions and the matter was returned to the lower court which refused to set any of them aside. On appeal, the Appellate Division concluded that the Board of Adjustment had acted reasonably in the first place and that the lower court should not have overturned the initial denial by the Board. The site in question was on the grounds of a residential school for emotionally disturbed children. A transmitting tower was not a permissible use within that zone and its height did not comply with the zoning ordinance’s limiting schedule. In fact, its height would have exceeded the height limitations for all zones in the municipality. In three hearings before the Board, the telecommunications company described the gap in its service coverage and the need for the proposed tower to fill the gap. The Board claimed that the applicant did not establish the claimed need because there was no testimony of any specific complaints to corroborate the inability to transmit or receive calls in the “dead” area. The Court, however, felt that such testimony was not necessary and that the telecommunications company’s expert testimony made clear the existence of the coverage gap and the desirability of filling it. However, the Court found less compelling the applicant’s proof as to why it had to place its tower on this specific site. “Although it did testify to the unavailability or unsuitability of twenty-seven sites it investigated, it did not demonstrate that there might be other sites - available and suitable - which could meet its need and be less intrusive in the neighborhood in which it would be located.” The applicant presented ample testimony that locating the tower in its proposed location would not adversely affect property values, would not create noise, traffic, or other negative factors (other than by reason of its visibility), and that the zone in question included many uses that would have a more detrimental impact than the proposed monopole. Opposition to the variance focused on three issues: (1) that the monopole might be an attractive nuisance to the emotionally disturbed students at the site; (2) the height of the monopole and its visibility would adversely affect property values; and (3) there were more suitable sites within the municipality which the applicant should have explored in more detail. With respect to the “attractive nuisance” argument, the applicant pointed to the absence of the school’s operators at the hearings and the school’s participation in the rental, as evidence that the school obviously had no concern about the potential danger to its students. The Court pointed out that whether or not a particular use, such as the telecommunications tower, is “inherently beneficial,” an applicant for a variance must still satisfy the negative criteria of the statute. If, however, the proposed use is “inherently beneficial,” then the standard for meeting the negative criteria is somewhat relaxed and a board of adjustment is required to employ a balancing test. First, the board must identify the public interest at stake. Second, the board must identify the detrimental effect that will ensue from the grant of the variance. Third, in some situations, the board may reduce the detrimental effect by imposing reasonable conditions on the use. Fourth, the board should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. In this case, the Court held that the Board of Adjustment determined that the applicant had failed to meet its burden, both with respect to the positive and the negative criteria of the statute. First, the parcel was not zoned to permit commercial uses. Second, the topography precluded effective screening and made unavoidable the negative effect of the unsightly tower on the residences both east and west of the site. Third, the municipality’s Master Plan’s designation of the site for future residential use was inconsistent with construction of the tower. Fourth, the ongoing use of the site as a school for disturbed children raised substantial questions of suitability which were never adequately addressed by the applicant. Finally, while the applicant referred to twenty-seven other sites it had examined, it did not claim or demonstrate that there were no other suitable or adequate sites that could meet its needs. In conclusion, whether or not the Board properly concluded that the public interest in perfecting service at this particular location was “not very compelling,” its judgment that the negative criteria had not been satisfied was held to be supportable by the record. Therefore, denial of the variance was the proper exercise of the Board’s power.

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