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New York SMSA Limited Partnership v. Mayor and Council of the Borough of Fanwood

A-4403-04T1 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; TELECOMMUNICATIONS; VARIANCES — Where there is ample substantial evidence in the record to support a finding that no further investigation of potentially available cellular tower sites is required, a finding that a planning board properly used its discretion in approving the applicant’s proposed tower site is appropriate.

A wireless communication carrier’s cell phone service had a gap in coverage in the vicinity of a municipality. Its subscribers in that area experienced numerous failed calls daily, about 5 to 10% of all calls. The carrier investigated the possibility of filling this service gap with the installation of additional antennas and ancillary equipment. After investigating several potential locations, the carrier selected a site where there was an existing utility tower owned and operated by an electric utility. The site was located in a zone where telecommunications facilities were not permitted uses under the municipal zoning ordinances.

The carrier applied to the municipal planning board for use and bulk variances for the site. The carrier also sought permission to construct equipment cabinets at the tower’s base, which would be screened by a fence. The use variance was necessary because the carrier’s proposed antennas were in a residential zone. A series of expert witnesses testified before the municipal planning board in support of the carrier’s application. The public citizens in attendance had the opportunity to question those experts. The carrier offered the testimonies of a radio frequency expert, a professional planner, and a certified real estate developer in support of its application. The planning board also heard from twenty-three neighborhood objectors. Most of the objectors contended that the proposed carrier’s facility would impair the residential character of the neighborhood, particularly on matters of aesthetics and the recreational use of the utility’s property. The objectors also questioned the impact of the proposed use on their property values. However, the objectors offered no competing qualified expert testimony.

After considering these extensive proofs, the planning board approved, by a five-to-two vote, the use and bulk variances sought by the carrier. An appeal was then taken by citizen-objectors to the governing body, the municipal council, who considered the testimony and record from the planning board hearings. The council, by a four-to-zero vote, reversed the planning board’s issuance of the variances to the carrier. In stating their reasons for their respective votes, some council members expressed concerns that the carrier inadequately considered placing the antennas at an alternative location in lieu of in the residential neighborhood.

The carrier filed an action in lieu of prerogative writs in the Law Division, seeking to reinstate the planning board’s approval of its application. One of the citizen-objectors was granted leave to intervene in the case. The council appeared in opposition to the application. The lower court heard the matter and considered the record of the municipal proceedings, as well as presentations from counsel for the carrier, the planning board, the municipality’s counsel, and the citizen-objector.

The lower court issued an oral decision reinstating the use and bulk variances awarded by the planning board. It concluded that the carrier’s application satisfied the positive and negative criteria for a variance under statutory law, and also found that the site was particularly suited for telecommunications facilities and would fill a significant gap that all parties and objectors agreed existed. Additionally, it found that the carrier had established through expert testimony that it had made a good faith effort to explore other alternative sites, and that there was nothing in the planning board’s record to contradict the carrier’s engineers finding that there were no other suitable sites in the area not considered. The lower court reasoned that the proposed site would not substantially impair the municipal zoning plan or zoning ordinance because the attachment of antennas to an already existing tower and the proposed storage facility would have minimal aesthetic or environmental effect. It also specifically considered the objectors’ concerns, and noted that although the proposed facility would face the front of some residences, the facility would not significantly alter the residents’ views; that a substantial distance separated the surrounding residences and the proposed storage facility; and that the fenced in storage cabinets would not present an attractive nuisance to children. Upon these findings, the lower court determined that the municipal council’s reversal of the carrier’s approved variances was arbitrary and capricious. It thus reinstated the variances, adding two conditions relating to the roadway leading to the tower and to shrubbery being placed around the fence. The order was solely appealed by the intervenor, the sole citizen-objector.

In considering the appeal, the Appellate Division first discussed the law governing land use variances. The Court explained that the variance statute requires proof of both positive and negative criteria. Under the positive criteria, an applicant must establish special reasons for the grant of the variance. To satisfy the positive criteria, an applicant must prove that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use. The Court noted that with respect to telecommunications towers, a Federal Communications Commission license generally establishes that the use promotes the general welfare. However, an applicant for a telecommunications facility must still show that the site is particularly suited for the use in order to establish the positive criteria.

The negative criteria prong under the statute requires proof that the variance can be granted without substantial detriment to the public good. The applicant must demonstrate through an enhanced quality of proof that the variance sought is not inconsistent with the intent and the purpose of the master plan and zoning ordinance. In making the determination of whether the negative criteria have been satisfied in a telecommunications case, a court must weigh the positive and negative criteria to determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.

The Court explained that when balancing the positive and negative criteria to determine whether a grant of the variance would be without substantial detriment, courts have followed these guidelines: First, the public interest at stake should be identified, recognizing that some interests are more compelling than others. Second, the detrimental effects, such as traffic, residential character, utility, or value, should be considered. Third, in some situations, the board may reduce detrimental effects by imposing reasonable conditions on the use, and if it does, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions. After considering these factors, the board should weigh the positive and negative criteria to determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.

With respect to the Appellate Division’s limited scope of review, the Court stated that a council or zoning board’s decision on a variance application may be set aside only when shown to be arbitrary, capricious or unreasonable.

The main argument raised by the citizen-objector concerned the alleged inadequacy of the carrier’s efforts to investigate alternative sites for the proposed antennas and equipment boxes. The Appellate Division found that the carrier considered as many as nine potential sites in the municipality and in surrounding municipalities for the installation of a free-standing monopole or the attachment of antennas to an existing structure to solve its coverage gap. The carrier’s first choice was a utility company’s tower located in a light industrial zone. It was preferred because it was in the dead center of the service area. Other sites, including the subject site, were in residential zones. However, the utility company denied the carrier’s request to install antennas at the light industrial zone site because that particular tower already housed equipment from three other cell phone companies. The carrier’s second choice was the subject property, which was the utility tower located just north of the preferred light industrial zone site. Moreover, the carrier had considered several other sites, but none was found suitable to fill the gap in cell phone coverage. Upon its numerous findings, the Appellate Division concluded that the citizen-objector failed to sustain her burden to set aside the lower court’s specific findings that the carrier had investigated other sites in a manner sufficient to comport with applicable case law. The Court found that the carrier’s witnesses before the planning board explained with reasonable sufficiency why it regarded the subject tower as most suitable for its antennas once the tower in the light-industrial zone proved to be unavailable. By contrast, the comparative advantages of other sites identified in the record were unproven. Thus, the Appellate Division concluded that there was ample substantial credible evidence in the record to support the finding that no further investigation of other residential sites was required, and declined to find a clear abuse of discretion by the planning board. Accordingly, the Appellate Division affirmed the lower court’s judgment reinstating, with certain modifications, the variances awarded to the carrier by the planning board

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