Skip to main content

Sprint Spectrum L.P. v. Zoning Board of Adjustment of the Township of Bedminster

A-2333-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; TELECOMMUNICATIONS — Where a land use board never establishes that the proximity of a proposed telecommunications tower to an environmentally protected property would have a detrimental effect on the neighborhood and the facts set forth in its variance denial decision do not support the decision itself, the court may overturn the board’s decision.

A telecommunications company sought a variance for the construction of two cell phone towers. Cell phone towers were considered a conditional use in the municipality. The municipal zoning board denied the company’s request. On an action brought by the company, the board’s denial was upheld by the lower court for one of the sites proposed by the company but remanded for further consideration of the other site. Both parties appealed. The board later approved a revised proposal to build the cell phone tower on what had been the “denied” site, but continued its appeal of the lower court’s remand of its initial denial of the other.

In the appeal, the Appellate Division noted that the proposed site to be considered on remand was in a residentially zoned area. Such a zone is considered the least desirable zone for the construction of a cell phone tower. It had one residence on nearly six acres of wooded land. The proposal called for an access easement for a gravel driveway and for clearing of thirty-five trees. Aside from the one home on the site, there were three additional residencies within five hundred feet of the proposed tower. The applicant maintained that the tower would not have been visible to any of those properties. The board argued that the lower court did not consider whether the board’s decision was arbitrary, capricious or unreasonable.

The Court found that the lower court correctly found that the proposed clearing of trees for the site did not negate the positive criteria of providing a necessary service. On the other hand, it held that the board never established that the proximity to an environmentally protected property would have had a detrimental effect on the neighborhood. It rejected the board’s argument that properties between eight hundred feet five hundred feet of the tower would have been negatively affected since the board’s denial of the variance only mentioned the effect that the tower’s height would have had on properties within five hundred feet of the tower. Further, the Court agreed with the lower court’s finding that the board had failed to weigh the positive and negative criteria with respect to whether the proposal was in the public good. Thus, it upheld the lower court’s reversal of the board’s initial denial of the company’s request, and dismissed the company’s appeal as moot.

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