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Sprint Spectrum, L.P. v. Zoning Board of Adjustment of Ocean Township

A-0122-02T3 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; VARIANCES—A zoning board cannot base its variance decision on the mistaken assumption that a better alternative site exists for an applicant’s project.

A cellular company applied for a conditional use variance to construct a wireless telecommunications facility in a commercial zone. The only issue was the tower. The municipality’s zoning ordinance required a setback from all boundary lines at least equal to the height of the tower and permitted towers of the applicant’s proposed height if they served at least three providers. The proposed monopole served three providers, but would have been located closer than 150 feet from two lot lines. This required two bulk variances. The zoning board, after numerous hearings, denied the use variance and denied site plan approval. Denial of the site plan approval was based on denial of the conditional use variance, not on the merits of the site plan. A lower court concluded that the board’s denial of the use variance was arbitrary, capricious, and reasonable and granted the use variance but remanded the case for consideration of the merits of the site plan. The zoning board appealed and the Appellate Division reversed and remanded the matter to the board for further proceedings.

The site was surrounded by commercial industrial buildings and was more than the required distance away from residential units. There was no question of a gap in reliable service and that a 150 foot high monopole, as proposed, would solve the problem. Apparently, the monopole’s proximity to the rear and side properties posed no hazard. Both the applicant’s expert and the board’s engineer agreed that monopoles “don’t fall down straight. They crumble. They tend to fall down and form a tighter pattern, so the setback requirement one foot for one foot is not a safety related issue. [It’s] an aesthetic-related issue.”

The applicant considered a substantial number of other sites, finding them unsuitable for a variety of reasons. During the hearings, substantial attention was given to one site but, during oral argument before the Appellate Division, the board’s attorney “conceded that site (a park) was not readily available for a number of reasons, primarily the Green Acres restrictions.” The zoning board’s professional planner described the primary issue as aesthetic. He thought that the proposed monopole location “would have a significantly greater visual impact on any existing or future development” in the immediate area, but neither he, nor any other witness, “suggested that the monopole’s presence would have an adverse economic effect on the abutting properties.” The board found that a monopole “is an imposing structure and the intent of the ordinance [was] to provide an appropriate sense of scale.” It held that the applicant had “failed to provide credible testimony that [the proposed location was] the only location which would satisfy [its] needs ... without the need for the type and number of variances need[ed] at this site.” It found that the property burdened by the Green Acres restrictions was a better location, but the Appellate Division noted that the zoning board conceded during oral argument “that the park was not readily and reasonably available.”

“A zoning board’s decision is presumptively valid, and the objector must prove that the decision is unreasonable.” The tower applicant was obliged to satisfy the positive and negative criteria of the zoning code. “The positive criteria are satisfied by a proof that ‘the site remains suitable for the use notwithstanding any nonconformity.’” To satisfy the negative criteria, the applicant “was obliged to prove ‘that the use [would] not substantially impair the purpose and intent of the zoning ordinance, or constitute a substantial detriment to the public good.” The photograph submitted by the applicant to the zoning board “dramatically demonstrated that the monopole’s height would not adversely affect aesthetic values in the general area; in fact, they show[ed] an intensely developed commercial and industrial neighborhood encumbered by utility poles; telephone, cable, and electric wires; street light poles; and commercial buildings and signs.” Since the zoning board conceded at oral argument that there was no reasonably available alternative, “the effect on the abutting properties [was] the only ground left on which [the zoning board’s] decision might be sustained.” There was no suggestion that the zoning “ordinance’s setback requirements were unreasonable or were designed to prohibit the introduction of monopoles in the area. To the contrary, the record suggest[ed] only that the setbacks were chosen to avoid adverse aesthetic impacts on adjoining properties.”

With that as background, the Court was “confronted with the situation in which the Board’s denial was based in large part on a good faith assumption [i.e., that another site was available], which it [later] acknowledge[d] was mistaken.” Consequently, the Court could not determine whether the board, on further review, would have approved the application or would have done so if “less substantial bulk variances based on repositioning of the monopole to the center or somewhere else on the property” were proposed.” Therefore, it remanded the matter to the zoning board because it felt that that body was “best equipped to passed initially on such applications for variance.” It did so, “without expressing any opinion on the possible outcomes of that process.”

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