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

A-2006-05T5 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING — A rebuttable presumption exists that a land use board properly exercised its discretion, and a court cannot substitute its own judgment for the board’s decision unless the board’s actions is proven arbitrary, capricious or unreasonable, even if a federal authority’s ruling on a related matter might give question as to the board’s judgment.

A wireless communications company wished to erect a 130 foot monopole on a site where a power substation was located. The site was located within a municipality’s general industrial zone. The municipality had adopted an ordinance which required monopoles, like the one proposed by the company, to be located a ground distance from any nonresidential users equal to the greater of 200 feet in height, or twice the monopole height.

As the company’s proposed structure did not conform to three conditional use standards, namely minimum lot size, tower setback, and fall-zone setback from nonresidential users, the company applied to the zoning board for a use variance. The applicant’s planner asserted that the deviations from the standards would be minimal because of the site’s large size. Because of the site’s close vicinity to an airport, the company applied to the Federal aviation Authority (FAA) for an aeronautical study to determine if the proposed monopole would affect the safety and efficiency of the air space. The FAA concluded that the tower would not be a hazard to air navigation. A member of the zoning board disagreed with the FAA’s conclusion, noting that he had seen airplanes fly very close to the area in question. Local residents expressed concern that light planes carrying banners might collide with the monopole. The board denied the application, concluding that the applicant had not proven that the tower would not be a safety hazard to banner planes, especially as to problems that could occur if a banner or plane struck the tower and if the tower struck the power substation on the site.

The wireless company appealed the zoning board’s decision and the lower court issued a conditional ruling, ordering further inquiry to the FAA. If the FAA indicated that banner planes had been considered and did not affect the safety of the monopole installation, the board would be directed to approve the application. After further inquiry, the FAA stated that it had considered all aircraft operations in its determination that the tower would not cause a safety hazard.

The board appealed further, claiming that the lower court should not have deprived it of its jurisdiction to conduct the initial fact-finding regarding the company’s application. The Appellate Division reversed the lower court’s decision, finding that when a court reviews a decision in which a municipality was allowed to exercise discretion, it should start by recognizing that the legislature entrusted the municipal board with discretion to make the decision. A rebuttable presumption exists that the board properly exercised its discretion, and a court cannot substitute its own judgment for the board’s decision unless the board’s action is proven arbitrary, capricious or unreasonable. The Court noted that the role of a court in reviewing such a decision is limited to determining whether the record supports the board’s decision. A court may not expand the record by ordering further inquiries.

For that reason, the Court found that the lower court erred in making a conditional ruling that the application should be approved if the FAA had considered the banner airplanes issue in its determination. It stated that in the rare occasion that a court determines that additional discovery is warranted, it should remand to the board for consideration of the new proofs. Additionally, the Court found that the board’s alternative ground for denial, the proximity of the proposed tower to the power substation, was not affected by the FAA’s consideration of banner airplanes. It was an independent basis for denial of the conditional use variance, and the lower court had not found it to be arbitrary, capricious or unreasonable. For these reasons, the Court reversed the lower court’s decision and ruled against the applicant.

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