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Northeast Towers, Inc. v. Zoning Board of Adjustment of the Borough of West Paterson

327 N.J. Super. 476, 744 A.2d 190 (App. Div. 2000)

ZONING; VARIANCES; TELECOMMUNICATIONS—An applicant seeking a use variance to continue its non-permitted telecommunications use should have introduced expert testimony that there were no other suitable sites and that use of the requested location would actually improve communications in the area.

A telecommunications company owned a property in a residential zone. The property contained a ranch house. About twenty-five years earlier, a 97-foot-high steel monopole communications tower had been erected in the middle of the backyard, about 40 or 50 feet from the residence. This was a non-permitted use under the municipal zoning ordinance and thus was illegal. The house was rented to tenants who had no relationship to the operation of the tower. A time came when the municipality’s code enforcement officer directed the owner to remove all antennae installed since the property had been purchased. Shortly thereafter, the officer denied a permit to an electrical contractor who sought to install a sub-panel to increase the electrical service for the tower’s antennae. The property owner then applied for a use variance, seeking permission to replace the tower with one that was two feet shorter, but at a slightly higher elevation. The application also requested variances for an expansion for a nonconforming use, set back and side yard relief, and relief from height restrictions in a residential zone. It argued that the communications tower was an inherently beneficial use, and also argued that if the present location could not be continued, the petitioner would require two or three other locations to cover the same pattern. The telecommunications company also presented testimony that the tower was in a unique location allowing for “line of sight technology” and also that the existing monopole was an integral component of an overall communications system. The zoning board unanimously denied the application. It objected to the site being located in a residential zone, bordered by residences to the north and south. Further, the proposed tower would be directly behind an existing garage, whereas the current tower was in the middle of the rear yard. The eight-foot-higher tower would violate the municipality’s zoning ordinances, and the existing tower did not constitute a preexisting, nonconforming use. Further, the resolution noted that the current property owner knew when it acquired the property that it was zoned for residential use and that no variances had ever been granted to allow the existing tower. Moreover, the applicant was not a single-user service, but was in competition with many other like providers (of paging services). In conclusion, the zoning board felt that the applicant had not demonstrated “exclusive public safety or public need” for the tower, nor that failure to approve the site would hinder public safety or governmental use for that type of facility in the area. It further concluded that “the tower was not an inherently beneficial use, but merely a commercial benefit for a commercial user.” Lastly, it found that the applicant failed to demonstrate that “locating the tower in a residential zone would not impair the intent of the zoning scheme and adversely affect the surrounding neighborhood, real estate values, and public safety and health.” The lower court overturned the board’s decision, but the Appellate Division reversed the lower court. It found that the issue was whether the applicant was entitled to a variance to locate or continue its tower in a district where those uses and structures were not permitted. New Jersey case law has rejected the concept that construction of a communications tower constitutes an inherently beneficial use. Holding an FCC license can, however, satisfy the first requirement of the positive criteria and establish that the facility serves the general public welfare. An applicant for a variance to construct a communications tower must satisfy the remaining requirements for obtaining a variance, “demonstrating that (1) the chosen site is particularly suited for the proposed use, (2) the application may be granted without violating the negative criteria relating to the intent and purpose of the master plan, and (3) a weighing of the positive and negative criteria shows that granting the variance will not result in a substantial detriment to the public good.” Although not required, it is a “better practice” for applicants to present expert testimony concerning the tower’s potential impact on the master plan or zoning ordinance. Taking these factors into consideration, the Court held that the lower court erroneously failed to accord any deference to the zoning board’s determination A local zoning determination will be set aside only when it is arbitrary, capricious, or unreasonable. The lower court’s record indicated that the judge conducted a de novo review such as would be done by a municipal governing body. At the conclusion of oral argument, the lower court judge “inappropriately, considering the standards of review, requested that the attorney for each party provide ‘findings of fact and appropriate conclusions for my consideration,’ even though the Board’s findings and conclusions already had been memorialized and were before the court for review.” Except for one minor point, the lower court’s opinion did not discuss the zoning board’s findings. It gave no deference to the zoning board’s decision, “let alone the greater degree of deference ordinarily accorded a zoning board’s denial of a variance.” The Appellate Division was satisfied from its review of the record that the board’s decision was fully supported and was consistent with the conclusions expressed by other courts in most recent case law. Assuming the applicant possessed an FCC license, and thus served the general public welfare, it made no showing of how the tower would improve communications in the area. It made no attempt to discover if the tower could be located on other sites in non-residentially-zoned areas of the municipality or neighboring communities. Its engineer had not visited the site; its geotechnical engineer had done no borings and had not been informed of the loading conditions for the tower. Its real estate appraiser conducted no sales studies of the neighborhood. As to the allegation that denial of the variance violated the Telecommunications Act of 1996, the zoning board successfully argued that “because the intent and effect of its decision was to require that communications towers be located in more suitable zone within the [municipality], not to ban them altogether, its action was permissible under the Act. Consequently, the Court agreed that the Telecommunications Act was inapplicable here because there was no evidence that the zoning board’s decision effectively prohibited access to the wireless use served by the applicant’s tower. The board’s decision acted as a “neither a moratorium nor a blanket prohibition,” but was “just one decision in a municipality that permits wireless facilities in other locations.”


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