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Omnipoint Communications, Inc. v. Bernards Township Board of Adjustment

A-4132-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; VARIANCES—If there is no contrary evidence before a land use board to contradict an applicant’s evidence that a proposed site is particularly suited for the intended use, then a board would be arbitrary, capricious, and unreasonable in finding otherwise.

A board of adjustment denied a wireless communication provider’s application for a variance to build a monopole on property in a historic district. The company sought use, height, setback, and separation variances to replace an existing forty-foot wooden pole, topped by a twenty-five-foot “whip-antenna.” The reason behind this application was that the company desired to extend its coverage over a gap in its communication coverage.

The company presented unrefuted testimony of its inability to find another area to build its monopole, including in areas where communication towers and antennas were allowed. No relevant testimony was brought in opposition. Despite this, the board rejected the application because it felt that the wireless company failed to pass the “Sica Balancing Test,” and the “Special Reasons” requirement. The “Sica Balancing Test” requires that the applicant prove that the proposed construction would not result in a substantial detriment to the public good and would not substantially impair the purpose of the zoning ordinance. The “Special Reasons” requirement forces an applicant to demonstrate that the site is specially suited for the proposed use.

The lower court overruled the board, finding that the wireless company had established the site to be particularly suited for the proposed use, thus satisfying the “Special Reasons” requirement. Since the board had introduced no contrary evidence, the lower court found the decision of the board to be “arbitrary, capricious, and unreasonable.” This was important because a decision of a board of adjustment is reversible only if it is found to be “arbitrary, capricious, and unreasonable.”

The Appellate Division agreed with the lower court that objectors to the wireless company had not presented evidence controverting the applicant’s testimony that various other sites were unsatisfactory or did they subject additional sites that the wireless company would have to show were also not suitable for its needs. Therefore, without such evidence, the Appellate Division agreed with the lower court that the “board’s findings . . . were reached because the board ignored all the competent evidence presented by the applicant.”

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