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

324 N.J. Super. 166, 734 A.2d 826 (App. Div. 1999)

ZONING; VARIANCES—A municipality may adopt a comprehensive ordinance setting forth requirements for obtaining a telecommunications tower variance and failure to comply with that ordinance is proper grounds for a denial.

A zoning board of adjustment denied a variance requested by a cellular telephone company largely because the applicant never satisfactorily explained why it could not mount its antennae on one of several existing structures in the area. This case differed from many prior such cases before the Court in that the municipality had adopted a comprehensive ordinance specifically directed at communications towers. The applicant sought to locate a 125 foot high monopole and an adjacent building on a 4.25 acre wooded tract. The tract was in a residential zone where height was limited to 35 feet and the proposed use was prohibited. One critical aspect of the municipal ordinance was that applicants were required to submit a narrative statement explaining why construction of a tower at a chosen site was necessary for “the efficiency and effectiveness” of its service. Also, under the ordinance, an applicant was required to explain why it could not use an existing tower or other structure. The board expressly found, among other deficiencies, that the applicant failed to meet several of the standards set forth in the ordinance. The lower court reversed, holding that the cellular telephone company was entitled to the requested variance. That court disagreed with the board’s assessment of the applicant’s testimony, finding instead that the applicant presented in-depth testimony as to why a tower could not be located on two sites suggested by the board and also concluding that the applicant had met the negative criteria. The Appellate Division reversed, holding that the board’s denial of the variance was properly grounded in law and in fact. In its view, the applicant’s submission was found to have failed to comply with the procedural and informational requirements set forth in the municipality’s ordinance. Although some of the information was provided by the applicant at the hearings, the Court held that the applicant’s failure to provide the information in advance of the hearings significantly hampered the ability of both the board and the objectors to gather data or expert opinions to challenge the applicant’s insistence that the tower needed to be located at its chosen site in order to meet its minimal needs. Moreover, the applicant did not provide all of the information demanded by the ordinance. The Court agreed that testimony in the record supported the applicant’s claim that neither of the two suggested alternative locations would meet its needs, but the record also showed that the applicant never satisfactorily explained why the antennae could not be located on a water tower mentioned by one of the neighbors or on another monopole recently approved by the municipality. For that reason alone, the board was justified in concluding that the applicant did not demonstrate a special reason for the requested variance. The Municipal Land Use Law reflects a strong legislative policy favoring land use regulation by ordinance rather than by variance. “It is for the governing body to determine by ordinance the compatibility of particular uses in different districts to establish the standards for different uses.” In fact, the Court understood prior case law to encourage municipalities to approach the issue through comprehensive planning as had been done by the municipality in this matter.


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