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Omnipoint Communications, Inc. v. Zoning Board of Adjustment of the Township of Wall

A-4677-07T3 (N.J. Super App. Div. 2009) (Unpublished)

ZONING; TELECOMMUNICATIONS — The “substantial evidence” requirement of the Federal Communications Act is analogous to the evidentiary requirements under New Jersey’s Municipal Land Use Law.

A wireless telecommunications provider sought to remedy a gap in its wireless coverage by constructing a 130-foot tower. Although the zoning district permitted telecommunications facilities as a conditional use, the provider’s proposal did not qualify as a conditional use. The provider sought a conditional use variance under section d(3) of the applicable statute. The variances were needed because the tower did not meet the required setback distances from the property lines and from an existing utility substation on the property.

The board focused on two separate safety issues. First, the proposed tower site was near an airport used by planes towing advertising banners. It had concern that the tower might be in the flight path. Second, the tower was to be placed within fifty feet of a power substation, with the tower’s perimeter fence immediately adjacent to the substation. The governing ordinance required the tower to be twice the distance of its height, in this case 260 feet, away from the closest nonresidential use, i.e., the power substation. The applicant produced evidence that the pole was safe, including testimony that such a tower could withstand high winds. Despite that testimony, the board voted to deny the application. The telecommunications company challenged the ruling.

The lower court remanded to the board on the substation safety issue. A representative from the municipality testified that if the tower did fall there would be a very good chance of a fire and explosion. Asked about whether this was a risk with tall trees as well, he testified that, unlike a monopole, there were no 130-foot tall trees near the power plant and if a tree fell it would burn up. A monopole is made of steel and could be dangerous because it conducts electricity. There was also testimony that if the substation were to be damaged, there would be a serious drain on police power to direct traffic in the area. Mention also was made that schools in the area could be adversely affected by a prolonged power outage. The board again denied the application based on the new evidence adduced at the rehearing. The applicant again challenged the board’s determination.

This time, the lower court upheld the board’s findings. It held that the applicant had failed to submit sufficient facts that would satisfy the board’s concern about the collapse of the tower within the fall zone. Thus, the board’s acts were seen as not being arbitrary, capricious or unreasonable. The provider appealed. First, it claimed the denial or the variance was arbitrary, capricious, and unreasonable. Second, it asserted that the denial was not based on substantial evidence, and therefore violated the Federal Communications Act of 1996.

The Appellate Division affirmed, noting that the “substantial evidence” requirement of the Federal Communications Act was analogous to the evidentiary requirements under New Jersey’s Municipal Land Use Law. It determined that the applicant had failed to satisfy the positive and negative criteria for a conditional use variance as they related to the board’s concern about the potential danger to the public if the tower was to fall on the substation. It opined that the cellular provider did not present sufficient evidence to overcome the board’s safety concerns. Accordingly, it agreed that board’s ruling was reasonable, based on the evidence presented.

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