Skip to main content

Sprint Spectrum, L.P. v. Board of Adjustment of the Township of Aberdeen

A-4666-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; TELECOMMUNICATIONS; USE VARIANCE — When a carrier seeks a use variance to permit installation of a wireless telecommunications facility in a zone that would otherwise prohibit it, the mere availability of an alternative site in a location where there is no gap in service does not negate the need for the variance because a gap in service in the requested area is, itself, proof that alternative site would not be helpful.

A carrier sought a use variance to permit the installation of a wireless telecommunications facility on an existing water tank in a municipality. Additionally, the carrier wanted to place electronic cabinets in a fenced-in, enclosed area at the base of the tower. Experts for the carrier testified that the antennae would be high enough to ensure safety from radio frequency exposure. They also testified that the facility would provide service for an area where there was currently insufficient coverage, would be particularly suited for the existing structure, and would cause minimal traffic impact, noise, glare, and landscape disruption. The carrier also proposed to improve the landscaping around the structure in response to area resident concerns. The municipality’s zoning board retained experts, but they did not testify at various hearings held on the application. The municipality’s planner confirmed that the proposed site was particularly suited for the intended purpose.

While the application was pending before the board, the municipality adopted a wireless communications ordinance. It offered, as a first priority, a location on a different water tank. The board denied the application the day after the effective date of the ordinance, claiming the location of the ground equipment would have a substantial negative effect on the surrounding residential properties, and claiming, as not credible, the expert testimony that noise would be minimal.

The carrier appealed, and the lower court reversed, ordering the granting of all necessary variances for the construction of the proposed facility. The lower court found, after reviewing the record, that the carrier had met the relevant legal standard, and had reasonably responded to a request to consider alternate sites. The court also found that the board’s rejection of the carrier’s expert testimony was arbitrary and unreasonable because it had not been founded on an alternative expert evidentiary basis. Then, the municipality appealed.

The Appellate Division affirmed the lower court’s ruling, stating that the board’s decision had to be reasonably supported by the record. It stated that the gap in service in the area was proof that alternative sites would not be helpful, and that expert testimony confirmed the proposed site was particularly suited for its use, thereby satisfying positive criteria. The Court agreed with the lower court that the board unreasonably rejected the carrier’s experts’ testimonies as it was not supported by competent contradictory testimony, thereby satisfying negative criteria.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •