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New York SMSA, Limited Partnership v. Board of Adjustment of Township of Weehawken

370 N.J. Super. 319, 851 A.2d 110 (App. Div. 2004)

ZONING; VARIANCES; RESOLUTIONS—A land use board’s memorializing resolution must include findings of fact and conclusions based on the evidence such that a reviewing court can properly analyze the variance request.

A telecommunications company applied for a use variance and for preliminary and final site plan approval to install a wireless communications facility at an apartment building located in a local B-1/B-2 High-Rise Multi-Family/Business Zone. The company’s expert testified that the municipality’s location and topography created problems for wireless services, and that cell phone users in the area had difficulty placing and maintaining calls from more than a dozen different sites. He concluded that the only way to solve this problem was to construct a series of antennas and other equipment at the designated site, a five-story, residential apartment building. The expert opined that the site was unique in that its height and location would solve the gap problem, while making sure that the coverage was selective so that it would not create extra interference in the area. He further explained why other possible sites were inadequate compared to the one chosen by the company. Another expert stated that the application met all of the positive criteria, pursuant to N.J.S.A. 40:55D-70, for the issuance of a “use” variance because the proposed site would enhance cellular communications and eliminate the need for construction of a tower. The second expert also testified that the proposal satisfied the negative criteria because there would be no substantial visual impact from the antennas. They would have been substantially obscured by telephone poles, traffic signs, and vegetation. Furthermore, the building was “sandwiched” between two major roadways.

Regardless, the local board of adjustment denied the motion. It stated that neither the positive nor negative criteria had been met. A lower court reversed the decision because the board’s resolution failed to state findings of fact or conclusions of law. It held that the company clearly demonstrated, through the testimony of experts, that a significant gap existed, that the site was unique, and that the company had carefully considered other alternative sites and had made the conclusion that the chosen site would create the least intrusive means of addressing the gap problem. In addition, the lower court noted that the board failed to demonstrate a significant negative impact if the site were approved, and it did not suggest alternative sites that the company possibly ignored. Thus, its denial of the application was held to be arbitrary and capricious.

On appeal, the board admitted that its resolution may have stated its conclusions in a summary fashion, but maintained that the verbatim public hearing transcripts substantially supported its decision. It also argued that a board is only required to set forth its reasons in detail when it grants a variance, not when it denies one.

The Appellate Division noted that N.J.S.A. 40:55D-10(g) provides that a memorializing resolution may be adopted at a meeting held no later than forty-five days after the date of the meeting at which the board voted to grant or deny approval. Such a memorializing resolution must include findings of fact and conclusions based on each decision. According to the Court, this board’s resolution did not comply with the statute because it was dated more than forty-five days after the meeting. In addition, a resolution must contain sufficient findings, based on the submitted evidence, to satisfy a reviewing court that the board has analyzed the variance request properly. In this case, the Court concluded that the board’s factual findings consisted only of conclusory statements and lacked any findings of fact. It merely identified the applicant, described the site, summarized the experts’ testimony, and reiterated selected comments by the board members.

The Court rejected the board’s argument that statements contained in the hearing transcripts should have been treated as having been incorporated into the resolution. It held that such remarks can only reflect the beliefs of the speaker and cannot be assumed to represent the findings of the entire board. In addition, the Court held that such remarks cannot be equated to findings of fact. Therefore, it is the resolution, and not the board members’ deliberations, that provides the statutorily required findings of fact and conclusions. The Court also held that the statute does not distinguish between grants and denials of applications. All the statue states is that boards must prepare a writing that includes findings of fact and conclusions of law for each decision on any application.

The board had decided to deny the application because it felt that the company failed to prove that there was a significant gap in coverage in the area. The Court rejected this finding, holding that no case interpreting and applying the state’s MLUL had required a wireless communications carrier to prove the existence of a significant gap in coverage in order to satisfy the positive criteria. And, since the board did not argue that the proposed site would negatively impact the community, its decision to deny the application was only sustainable if the company failed to satisfy the positive criteria. Also, the Court held that the company had established that the proposed site was particularly suitable for the proposed facility. Its expert presented propagation maps based on computer models, accepted in the industry, describing in detail, the technical causes of the service gap. He explained why the proposed site would solve the coverage problem, and readily answered the board’s questions about alternate sites. Thus, because the company was an FCC-licensed wireless communications carrier and because it established the particular suitability of its proposed site, it had satisfied the required positive criteria. Therefore, the Appellate Division affirmed the lower court’s decision and held that the board’s denial of the application for the use variance was arbitrary and capricious.

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