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Omnipoint Communications., Inc. v. Zoning Board of Adjustment of the Borough of Rutherford

A-0202-09T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; TELECOMMUNICATIONS — Although the New Jersey Supreme Court has declined to recognize telecommunications facilities as inherently beneficially uses, where a company is licensed by the Federal Communications Commission, it is presumed that its use serves the general public.

A digital mobile telephone company identified a coverage gap in a municipality. After analyzing suitable sites at which to place antennas or towers, the company negotiated a lease to erect eight rooftop wireless antennas on a four story residential apartment building located in a single family residential zoning district. The plan called for disguising the antennas as false chimneys.

The municipality’s code set a maximum building height in the zone at thirty-five feet. Because the proposed antennas would rise nearly ten feet above that limit, use variances were necessary. Additionally, wireless telecommunications facilities were not permitted in the zone. At a municipal hearing, the company presented the testimony of five witnesses to testify as to the need for additional telecommunications facilities in the area, and the unsuitability of alternate sites. The company’s expert planner testified that the positive aspects of the proposed use outweighed any visual detrimental impact, calling the wireless telecommunications use benign. The zoning board denied the application, finding that the company had not demonstrated any special reasons for approval and that the company failed both the positive and negative criteria required for approval. The company then filed an action in lieu of prerogative writs, and the lower court found that the board’s findings were entirely unsupported by the evidence produced at the hearing. The zoning board appealed.

In the appeal, the Appellate Division pointed to New Jersey’s strong policy preference for land use planning by ordinance rather than by variance. Thus, the determinations of a land use board are presumed valid and are to be reversed only when the board’s findings are arbitrary, capricious or unreasonable. The New Jersey Supreme Court declines to recognize telecommunications facilities as inherently beneficial uses. A Federal Communication Commission (FCC) license generally establishes that the use promotes the general welfare; however, an applicant must establish that the proposed telecommunications use is particularly suited for the proposed site. Because the company was licensed by the FCC, it was presumed that the proposed use served the general public. In light of that and other factors, the Court found that the company had proven the positive criteria with uncontested expert testimony. Thus, because the board’s findings were contrary to the uncontroverted testimony, they were arbitrary.

Further, the Court noted that a land use board must balance any visual detriment against the positive criteria and determine whether the proposed use would constitute a substantial detriment to neighborhood and zoning plan. Here, it failed to consider the positive criteria of the application.

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