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Nextel of New York, Inc. v. Borough of Englewood Cliffs Board of Adjustment

361 N.J. Super. 22, 824 A.2d 198 (App. Div. 2003)

ZONING; VARIANCES; TELECOMMUNICATIONS—A land use board may base its use variance decision that no coverage gap exists on statements, within a cellular telephone carrier’s own advertising literature, that the carrier has full coverage throughout the county.

A cellular carrier applied for a use variance and site plan approval to install wireless communications facilities on two buildings. At one building, it would construct an equipment shelter. At the other building, the equipment was to be located inside. Both buildings were surrounded by parking. One building was four stories and measured 45 feet to its roof line and already had a 12 foot high equipment shed that belonged to another wireless communications company and an HVAC tower that rose 57 feet above ground level. The proposed antennas there would only rise to 51 feet above ground level. The other building already had existing antennas equipment owned by two wireless companies, apparently placed without permission from the municipality. That building measured 27 feet and the existing equipment brought its height to 37 feet. The proposed antennas would only rise to 31 feet, contrasted with a maximum building height in the zone of 35 feet.

The municipality had designated two lots within its boundaries as “public zones,” and those zones allowed wireless communication towers as accessory or principal uses. When that zoning change was adopted, the ordinance grandfathered existing antennas, but the existing towers and antennas on the two buildings did not meet the requirements “absent any enlargement or structural modification of the addition of any structures.” The applicant’s expert testified that the proposed radio frequency admissions complied with FCC standards. An employee of the applicant opined that the antennas would eliminate a “gap” in service to customers. Much of that testimony “was provided in response to the Board’s efforts to understand why the antennas could not be placed on a tower located on municipal property in the area zoned for communications facilities.” That tower was only six blocks away from one of the buildings. The applicant’s employee opined that to do so would not eliminate “the gap to the south” and that the applicant would still be required to use the two proposed sites. The employee based his opinion on his “experience,” and provided no reports or evidence to underpin his opinion.

A licensed professional planner testified on the applicant’s behalf to the effect that “the proposal would advance the purposes of the Borough’s ordinance and could be granted without substantial detriment.” She opined that the locations were not in residential zones and were surrounded by office buildings, commercial properties, and parking lots. One of the buildings was shielded by a large number of trees “and the buildings had existing antennas such that the additional antennas would have [had] very little visual impact.” The board’s expert opined that the taller building required three “d” variances including a variance for expansion of a nonconforming use and that one needed it because the building itself did not conform to a number of bulk regulations, and that the addition of an equipment shelter increased the number of stories to the building.

The board rejected the application, concentrating on the applicant’s employee’s testimony and “their feelings that [the applicant’s employee] never fully explained why [the applicant] was unable to use a municipal tower or why the antennas at the proposed sites were necessary.” The applicant appealed to the Superior Court, but the lower court judge held that the “Board’s action did not violate the [Telecommunications Act of 1996 (TCA)] because there was sufficient credible evidence for the Board to come to the conclusion that [the applicant] had failed to adequately demonstrate that significant gaps in service existed and its proposal was not the least intrusive means of filing gaps.”

According to the Appellate Division, “[t]he applicable underlying zoning principles are well-settled. ... [T]he Board can grant a variance for special reasons to permit, among other things, a use or principal structure in a district in which such uses or structures are restricted, an expansion of a nonconforming use, or a height of a principal structure that ‘exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.’” The applicant must satisfy both the “positive criteria,” or “special reasons,” to be granted the variance, and the “negative criteria” showing that the variance “can be granted without substantial detriment to the public good” and that it “will not substantially impair the intent and the purpose of the zone plane and zoning ordinance.” “An FTC license will satisfy the first requirement of the positive criteria and establish that the facility serves the general public welfare.” However, the applicant also must show that the site is particularly suited for the antenna. According to the lower court and with the endorsement of the Appellate Division, the board was entitled to consider the applicant’s sales brochures which stated that the applicant had full coverage throughout all of the county. While it was clearly not expert testimony, “it’s something that a board is entitled to take into account.” Further, the lower court judge reportedly “read the testimony of the radio frequency engineer a number of times” and had difficulty understanding it. Consequently, the lower court thought that it was not arbitrary, capricious, or unreasonable for the board to have similar difficulty. The applicant’s argument that the board should have retained its own expert to refute the applicant’s testimony was unsupportable because “[t]he burden of presenting persuasive proof on a special reasons criteria rest[s] with [the applicant].” The fact that the applicant’s expert was unsuccessful in helping the board to understand the evidence was the applicant’s problem. A board is not obligated to accept the testimony of any witness and may reject such testimony “so long as [its decision] is reasonably made.”

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