Skip to main content

New York SMSA v. Zoning Board of Adjustment of the Township of Edison

A-3872-04T3 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; USE VARIANCES; TELECOMMUNICATIONS—To obtain a use variance for a tower, a telecommunications provider need only make reasonable and good faith efforts to find an alternative, more suitable site; it does not need to negate the possible existence of other, better sites.

A telecommunications company was denied preliminary and final site plan approval “to place a 12-foot high antenna on an existing 103 foot high transmission tower ... which would have raised its current height an additional eleven feet.” The lower court then determined that the board’s denial was arbitrary, capricious, and unreasonable. In doing so, it recognized that “in seeking a use variance, [an applicant is] required to prove both the positive and negative criteria contained in N.J.S.A. 40:55D-70(d). The positive criteria required that special reasons for the grant of the variance be established. ... ‘[S]pecial reasons’ are defined by resort to the purposes of zoning, with an emphasis ‘on the promotion of the general welfare as a zoning purpose that mostly clearly amplifies the meaning of special reasons.’ ... It is generally understood that if the proposed criteria is inherently beneficial then the positive criteria are presumptively satisfied.” Although telecommunications towers are not per se an inherently beneficial use, the New Jersey Supreme Court “did hold that the existence of an FCC license establishes that a proposed telecommunications tower promotes the general welfare, ... . It further held that to meet the positive criteria, the applicant must demonstrate that the proposed site is particularly suited for the proposed telecommunications facility. ... In short, ‘there must be a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought.’”

Here, it was undisputed that there was a significant gap in coverage in the area that would be served by the proposed structure. Further, the site was particularly suitable because it was to be placed on an existing power line tower. The eleven foot increase in height would only raise the tower from its current 103 feet to 114 feet. Consequently, in the minds of the Court, the applicant “convincingly demonstrated that the subject site was peculiarly suited for the use.” The zoning board believed that the applicant failed to demonstrate that another particular site was not available. The board thought that the alternate site would have been preferred because it was in a commercial zone whereas the applicant’s chosen site “was located within 100 feet of residences.” The record, however, indicated that the alternate site’s owner was largely unresponsive to the applicant’s inquiries. Further, when the owner of the alternate site responded, “its demand proved exorbitant and no further negotiations yielded a fair compromise” for the applicant’s use of that alternate site.

Under current law, “a telecommunications provider need only make reasonable and good faith efforts to find an alternative, more suitable site. ... A board cannot base its denial on a provider’s failure to ‘negate the possible existence [of other sites] that might have served better and been less intrusive.’”

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •