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The Spinnaker Condominium Corporation v. Zoning Board of the City of Sea Isle City

357 N.J. Super. 105, 813 A.2d 1282 (App. Div. 2003)

ZONING; STANDING—Because of the specialized issues involved in such matters, a property owner cannot appeal denial of a use variance for telecommunications purposes when the applicant withdraws, even though such variances are not personal but run with the land.

A condominium association leased roof space to a telecommunications company for the location of antennae and related equipment. The telecommunications company applied to the municipal zoning board for a conditional-use variance and its application was denied. It declined to appeal, having found an alternate site for its facility, but the condominium association filed an action in lieu of prerogative writs challenging the board’s denial. That raised the issue as to whether the association had standing to file its action.

Under the applicable court rule, cases must be prosecuted in the name of the real party in interest. The “real party in interest rule is ordinarily determinative of standing to prosecute an action.” In essence, “a litigant must have a sufficient stake in the matter and face ‘[a] substantial likelihood of some harm’ from an unfavorable decision.” Even though New Jersey courts “generally have set a fairly low threshold for standing,” a litigant must show that “there is genuine adverseness between the parties in terms of the litigated controversy.” In this case, the Court did not believe that the condominium association had standing because it found that the association had not suffered the requisite “substantial likelihood of some harm.” The association was not a licensed telecommunications service provider. Further, the board’s decision did not “intrude upon any statutory right held by [the association] to install or operate the antennae on its own.” Further, the Court believed that once the telecommunications company chose not to appeal the denial, “it presumably terminated its lease.” Consequently, “any economic interest derived from the lease” by the association was extinguished upon its termination.

The association argued that its standing was derived from the definition of “developer” under the Municipal Land Use Law. Further, it argued that if the board’s action was reversed, and a variance granted, it would enjoy the benefit of the variance because variances, once granted, run with the land. The Court conceded “that use variances attached to the land are not personal to the applicant,” that pointed out that “an application by a wireless telecommunications provider implicates more than ‘property-specific proof.’” Essentially, the uniqueness of a wireless telecommunications application means that a use variance will be specifically related to the technical proof by a particular applicant and would also relate to the presence of a “coverage gap.” Therefore, if the association wanted to obtain a use variance, either by reversal of the board’s original decision, or by an entirely new application, it would need to present the zoning board with technical evidence specifically related to the particular provider that would utilize its building and a “generic” telecommunications use variance was not be available to the condominium association.

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