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

A-3437-03T2 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; TELECOMMUNICATIONS—The need for a cellular carrier to expand its call capacity is to be treated by a land use board no differently than the need to fill a coverage gap.

A zoning board approved a telecommunication company’s application to replace an existing, outdated lattice tower with a 90 foot monopole. The board found that there would be no adverse impact on the surrounding property and that the applicant had demonstrated that it had an FCC license and that the proposed use would meet a need along a local roadway. It also concluded that the applicant had demonstrated special reasons for the relief, which could have been granted if there was no substantial detriment to the public good and no substantial impairment of the intent and purpose of the municipality’s Master Plan and Zoning Ordinance.

The telecommunications company then filed an application with the board for a use variance to permit additional antennas on the previously approved monopole and to place an additional equipment cabinet on the ground. Its electrical engineer testified that there was a need to expand the company’s system to accommodate more users. The expert testified that because of inadequate capacity, calls were being dropped, and the system’s ability to handle 911 calls was impaired. A radio frequency expert and a licensed professional planner also testified as to the need for the additions to the site.

One property owner spoke against the application, claiming that the monopole had adversely affected area property values, but he did not identify the addition of antennas as the problem. Another property owner complained that “landscaping in the buffer area had died.” In response, the applicant promised to replace the dead bushes or trees. The last opposing property owner opined that the antenna should have been disguised. The board denied the application, and the lower court affirmed the board’s denial.

The Appellate Division disagreed. It rejected the board’s finding that the additional cabinet would require more site visits, thereby detrimentally affecting the site. Although the board had found that the applicant failed to prove that it had consistently exceeded its capacity, the Court noted that the applicant never claimed there was consistent failure. Rather, the applicant had testified about excess service failures, resulting in less efficient overall service than called for by industry standards. Thus, the board’s answer, that the existing service met the minimum FCC license requirements, was unresponsive to the issue.

Although the board had agreed there was a public interest in expanding cellular phone service, it still concluded that expansion was only nominally important to the public interest. It felt there were already adequate services within the municipality and that three were no gaps in coverage. The Court had a different perspective. From the point of view of a user, there was no difference between not being able to place or receive a call because of lack of capacity as opposed to a lack of coverage. In either case, use of the telephone is lost. Therefore, the Court concluded that the board acted unreasonably when it treated lack of capacity differently from lack of coverage.

Since the monopole already existed and had one set of antennas that were identical to what the company proposed, the Court rejected the board’s conclusion that there would be additional detriment because of the high visibility of the set-up. Nor was there evidence to support a conclusion that the additional antennas or cabinet would have increased the traffic at the site.

The Court held that the applicant satisfied the positive criteria because its application addressed the problem of lost cell phone calls, and that the board’s findings of a failure to satisfy the negative criteria was entirely unsupported by any evidence. For that reason, it reversed the lower court’s decision to affirm the board’s denial of the application, and remanded the matter to the board.

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