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Sprint Spectrum, L.P. v. Zoning Board of Adjustment of the Borough of Leonia

360 N.J. Super. 373, 823 A.2d 87 (App. Div. 2003)

ZONING; TELECOMMUNICATIONS; VARIANCES—In deciding upon variances for telecommunications uses, a land use board is required to strike a balance between benefits and detriments and cannot refuse a grant merely because the use serves a commercial purpose in a non-commercial zone.

A telecommunications carrier sought a variance “to affix nine small antennas to the roof of an existing five-story apartment building located in a residential zone.” The zoning board held that the equipment was contrary to the municipality’s master plan and its zoning plan and denied the application. The lower court reversed, granting the variances. The Appellate Division, affirmed. It found that “the proposed telecommunications facilities [would] serve the general welfare, its benefits to the public [would] outweigh its potential detriments, and locating the equipment in a residential zone [would] not substantially impair the intent and purpose of the zone plan or ordinance.”

The application required “a use variance because telecommunications equipment [was] not permitted in any zone of the municipality.” The existing building was already 25 feet above the maximum height permitted in the zone, but the antennas were not going to extend beyond the height of the parapets on the roof. “A rear yard setback variance [was] necessary because three of the antennas would be set back 7.6 feet from the property line, while the zoning district require[d] a 35-foot setback.” The telecommunication company’s expert testified that to provide for line-of-sight communications, the antennas needed to be highly elevated. The site was chosen because the ground elevation of the building was 120 feet, “making the top of the parapets approximately 175 feet above grade.” Further, the antennas rose “no higher than the parapets and a dumbwaiter [was] already located on the roof.” The antennas were to be camouflaged or shielded. Some were to be painted to match the building and some would not even be visible from the street. Others would be surrounded by a screen. The equipment cabinets were unmanned, computer monitored, and could withstand high winds. Testimony was also given that the only alternative would be to build a very high monopole or tower and that any of them, even those “with fake tree limbs affixed” would have “substantially more impact upon [the municipality] than placing the antennas ... on a roof top.” The zoning board found that there was a gap in acceptable coverage, but also found that “the proposed location ... [was] neither the only location to alleviate the gap nor necessarily the best location ... .” It thought that the applicant’s motivation was convenience and cost and that such factors should not “from a zoning perspective, render the proposed site ... particularly suitable.” It evidenced a preference that the facility be more appropriately located in either an industrial or commercial zone of the municipality.

Under New Jersey law, a “wireless communications facilities such as a cell tower or monopole are not an inherently beneficial use.” Therefore, an applicant must show that its proposed site is particularly suited for the use. The Court found that this “proposed telecommunications facility [was] particularly suitable for the proposed site.” The board had already found that alleviating the gap in coverage of service serve[d] the general welfare. It looked at the factors set forth in case law and found that the applicant’s “method to determine the gap in coverage was accurate and accepted in the industry, and it had ‘a valid need’ for telecommunications facilities to cure the [gap]. Placing the telecommunications facilities on the subject property would provide the needed coverage.” Further, the municipality did not have a zone that permitted the use, and a use variance would be necessary regardless of where the facility was to be located. There was “unrefuted expert testimony ... that there were no existing buildings or other structures in non-residential zones which could have adequately addressed the lack of service in the area for the proposed site.” A telecommunications carrier is not required “to negate the existence of all other possible sites to establish that the proposed site [is] particularly suited for the use.” Reasonable and good faith efforts “to find an alternate, less-intrusive site” is a relevant consideration, but a zoning board does not have a “carte blanche power to reject an application based on conjecture that a ‘possible’ alternative site is both suitable and available.”

The Court also looked to see whether the applicant satisfied the negative criteria. Because telecommunications facilities are federally licensed and serve the general welfare, the Court “applied a less stringent balancing test than otherwise would be required.” “When striking a balance, first, ...[the local land use] board should identify the public interest at stake. Some uses are more compelling than others… . Second, the Board should identify the detrimental effect that will ensue from the grant of the variance ... . Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. If so, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions ... Fourth, the board should then weigh the positive and negative criteria to determine whether, unbalanced, the grant of the variance would cause a substantial detriment to the public good.” The Court found that the proposed antennas were not visually intrusive. It also found them to be safe, produce no radio frequency danger, contain no hazardous materials, create no noise, require no municipal services, and monitored by computers. It found that all of those factors appeared “to have been disregarded by the Board.” When the Board pointed to the commercial nature of the use to find that it was inappropriate in a residential zone, [it] failed to consider or explain what, if any, detrimental effects would ensue from locating the specific commercial use in the zone.” That was unacceptable. After weighing all of the factors, the Appellate Division upheld the lower court’s grant of the variances.


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