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Omnipoint Communications, Inc. v. Borough of Fair Lawn Board of Adjustment

A-0910-08T1 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; TELECOMMUNICATIONS — Where there is unrebutted expert testimony as to a gap in telecommunications service and overwhelming evidence that the proposed facility is particularly well suited for that particular location, an applicant is not required to disapprove the possible existence of alternative suitable sites.

A cell phone provider sought a use variance to build a third cell tower in a municipality. There was a gap in coverage and the selected site was the most suitable location in the municipality to place the new tower. It was located within a residential zone that did not permit telecommunications facilities. At the zoning board hearing, the telecommunications company’s expert testified that the proposed facility complied with all federal and state regulations and did not pose a threat to the public health. Another expert testified that the proposed facility would remedy a gap in service to the carrier’s customers residing within the municipality and that the location was one of only two suitable sites within the search area (and the only other available site required a use variance). The expert also testified that the facility would produce no noise, odors or traffic and mentioned that there were three non-residential uses already within the residential zone. Nevertheless, the zoning board of adjustment denied the variance, finding that the telecommunications company didn’t produce adequate evidence that service was unavailable in the area. The board also indicated that the size of the tower would have a negative visual impact and the proposed mitigation of this impact was insufficient and that the applicant failed to present adequate evidence of its attempts to locate the facility at an alternate site. The cell company appealed.

The Law Division reversed the zoning board’s determination and granted approval to the amended site plan. The lower court held that the board’s finding that the telecommunications company had failed to establish a gap in service (which would require a need for the additional facility) was arbitrary, capricious, and unreasonable. It noted that the board was not free to reject uncontradicted expert testimony unless it explains why in a non-arbitrary, capricious, and unreasonable manner. The lower court also pointed out that the board’s own expert confirmed all the material issues regarding the gap in service. It noted that the board’s reliance on the negative feature of the facility, its height, did not outweigh the positive criteria, including the need for the facility and the particular suitability of the site. The Court further mentioned that the telecommunications company submitted ample evidence of its good faith efforts to locate an alternate site that the board ignored. Finally, on the issue of suitability, the lower court held that the evidence was compelling, overwhelming, and undeniable that the site was suitable for the facility. The zoning board appealed.

The Appellate Division affirmed for substantially the same reasons that were expressed by the lower court. It recited that there was unrebutted expert testimony as to the gap in service and overwhelming evidence that the facility was particularly well suited for that particular location. It held that an applicant is not required to disprove the possible existence of alternative suitable sites and concluded by adding that it was disingenuous for the board to identify a preferred alternative site which could not accept the facility absent a use variance.


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