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New York SMSA Limited Partnership v. Zoning Bd. of Adj. of the Twp. of North Bergen

A-3866-02T3 (N.J. Super. App. 2004) (Unpublished)

ZONING; TELECOMMUNICATIONS—Where a proposed rooftop telecommunications facility, excluded from all zones in a municipality, is “all but invisible,” then absent some evidence of adverse impact, a zoning board should grant the applicant a use variance.

A local zoning board of adjustment denied a company’s application for a use variance, height variances, and site approval for the construction of a rooftop wireless telecommunications facility on a five-story condominium and apartment building located in both a general business limited mixed use zone and a residential zone. Despite the fact that the proposed facility was not a permitted use in any zoning district of the municipality, the lower court reversed the board’s decision. It determined that the proposed facility would be “all but invisible” and the purposes of the local zoning ordinance would not be compromised. It also held that, “[it would be] difficult to conceive of a site more particularly suited for the use or less intrusive.” Furthermore, the wireless company had presented uncontradicted evidence that no other site was available or reasonably suitable. Finally, there was no evidence showing any adverse impact to the neighborhood’s aesthetics or real estate values as a result of the facility. Based on the evidence and the consideration given by the lower court, the Appellate Division affirmed the decision.

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