Skip to main content



Smart SMR of New York, Inc. v. Borough of Fair Lawn Board of Adjustment

152 N.J. 309, 704 A.2d 1271 (1998)

ZONING; TELECOMMUNICATIONS—Generally, issuance of an FCC license should suffice to establish that an antenna serves the general welfare. Localities are virtually preempted from considering issues of radiation emissions. Proof of adverse effect on adjacent properties and on the municipal use plan requires qualified expert testimony.

The issue presented was whether a company was entitled to a use variance under N.J.S. 40:55D-70(d) to erect a 140 foot monopole in an industrial zone as part of a digital telecommunications system that would provide services to the New York metropolitan area. The applicant was not a public utility. Therefore, a height variance was required. The statute requires proof of special reasons for granting the variance (positive criteria), as well as proof that the variance can be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning ordinance (negative criteria). Opponents feared exposure to electromagnetic radiation and also thought the monopole’s physical presence would lower property values. No expert testimony was presented. The municipal board of adjustment agreed with the opponents and denied the variance, finding that the tower had no inherently beneficial use to the general public, and that the site was inappropriate because it abutted a residential area. The lower court affirmed, but the Appellate Division reversed, finding the board’s action arbitrary, capricious and unreasonable. The Appellate Division found the opponents’ arguments, and by extension the board’s decision, to be unsupported by any evidence. It also held that the monopole was both inherently beneficial and particularly suited for the site while of minimal detrimental impact on the zone, thus satisfying the statute’s positive and negative criteria.

The New Jersey Supreme Court affirmed, finding the monopole to be a necessary part of what was essentially a public service, and of no substantial detriment to the public good. The Supreme Court stated that satisfaction of the positive criteria of the statute requires proof that the proposed use promotes the general welfare. Satisfaction of the negative criteria requires an “enhanced quality of proof” that the variance is not inconsistent with the intent and purpose of the zoning ordinance. This enhanced burden is relaxed if the use is inherently beneficial, in favor of a simple balancing of the positive and negative criteria. Such balancing includes weighing the public interest and the detrimental effect of the variance. It further found that the positive and negative criteria of the statute had been satisfied, but stopped short of agreeing with many lower New Jersey courts that a mobile communications facility was an inherently beneficial use. The Court found that state and federal statutes also affect municipal regulation of telecommunications facilities, and must be considered. The Telecommunications Act of 1996 limits regulation of wireless service facilities by local and state governments, and any local regulation of radiation emissions is preempted by the New Jersey Radiation Protection Act. The Court then offered guidelines for use by local agencies and lower courts when deciding such cases in the future. First, the issuance of an FCC license should suffice to establish that the use serves the general welfare as long as an applicant demonstrates that any required tower be situated at a site particularly suited for that use. Second, proof of any adverse effect on health or property values must be demonstrated by expert testimony.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com