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Sprint Spectrum, L.P. v. Borough of Englewood Cliffs Planning Board

A-4157-97T2 (N.J. Super. App. Div. 1998) (Unpublished)

ZONING; VARIANCES—A board may not deny a variance application solely to give the municipality time to decide whether to amend its zoning laws.

A wireless telephone service applied to a municipal planning board for site plan approval authorizing the installation of an antenna system on the rooftop of an existing building. The application also sought a bulk variance from the general thirty-five foot height limit upon structures in the zoning district to allow the proposed antennae to be approximately forty-four feet high. The applicant reserved the right to argue that a variance was not required because the height of the structure to which the antennae would be attached would not be increased. The board adopted a resolution that “disapproved [the application] so as to permit the municipality to investigate the ordinance that would require co-location of cellular antennae.” The board did not make any findings as to whether the site plan application complied with the provisions of the then existing zoning ordinance, or if not, whether the applicant was entitled to a bulk variance.

The wireless telephone company then filed an action in lieu of prerogative writ seeking reversal of the board’s final decision and a determination that it was entitled to approval of its application. After the board answered the complaint, the applicant moved for summary judgment which was granted. The lower court held that the board had violated the Municipal Land Use Law by denying the application without regard to whether it complied with the municipality’s land use ordinance, solely for the purpose of affording the municipal council an opportunity to decide whether that ordinance should be amended. It also held that the application complied with the then existing ordinance and that the proposed antennae could be installed without a bulk variance. It went on to find that the board had been arbitrary, capricious, and unreasonable in denying the application. Finally, the lower court concluded that if the application had been approved, it would not have been subject to amendment so long as the improvement was completed within the time allowed under New Jersey statute. In these circumstances, the “time of decision” rule would not apply. The Appellate Division affirmed and added that the board’s argument that the application required a use variance (which only the board of adjustment had the authority to approve) was without merit. Under the then existing ordinance, no variance of any kind was required in connection with the application for site approval because the application only sought to affix antennae to an existing structure.


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