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Ocean County Cellular Telephone Company v. Township of Lakewood Board of Adjustment

352 N.J. Super. 514, 800 A.2d 891 (App. Div. 2002)

ZONING; TELECOMMUNICATIONS— A land use board cannot reject a telecommunications tower application because the possible existence of other more suitable locations, where that possibility is based on speculation.

A municipality’s zoning ordinance prohibited the construction of cellular phone antennas without a variance. A cellular service provider applied to the board for a variance to construct antennas on top of a school building in a neighborhood consisting of residential and office uses. In order to obtain the variance, it needed to show that the antennas would promote the general welfare, that there were special reasons to construct them at that location, that granting the variance would not be substantially detrimental to the public good, and that the variance would not substantially impair the intent and purpose of the municipal zoning plan. The cellular provider submitted expert testimony showing that it needed to build additional cellular towers to alleviate gaps in cellular service coverage in the municipality. The cellular provider showed that the proposed location was within the area in which it found gaps in service and that the antennas would exceed the building’s roof line by approximately seven feet, so there would be minimal visual impact. The board rejected its application, citing the detrimental visual impact of the antennas, the public fear and apprehension about the health effects of radio frequency emissions, and the existence of other suitable locations for the antennas. The cellular provider appealed, but the lower court upheld the denial. The Appellate Division reversed even though a board’s determination is not reversed unless it is arbitrary and unreasonable. In reversing, the Court found that the cellular provider’s receipt of an FCC license established that its proposed use promoted the general welfare. It also found that the cellular provider demonstrated a particular reason for requiring the variance at the proposed location. The cellular provider submitted evidence that the proposed location was best suited to alleviate the loss in cellular service to customers within the municipality. It also found that the cellular provider met the negative criteria by showing that placing the antennas on the rooftop would be less of a visual nuisance than using freestanding tower antennas. In addition, although the cellular provider submitted evidence that the radio frequency emissions were within acceptable standards, the board failed to provide any expert witnesses to show that the radio frequency emissions were detrimental to public health. The Court also noted that the board improperly rejected the variance application on the basis of the possible existence of other more suitable locations, when the possible alternatives were based on speculation as to the suitability and availability of alternate locations.

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