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T-Mobile Northeast, L.L.C. v. Borough of Northvale Planning/Zoning Board of Adjustment

A-4359-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES — Where a use variance sought by an applicant can be granted without substantial detriment to the public good and without substantially impairing the intent of purpose of the zoning plan or zoning ordinance, it should be granted.

A wireless provider wanted to erect a 110 foot monopole. It sought to address a coverage gap in the community. It submitted an application to the municipal zoning board for bulk variances. The board conducted five days of public hearings, hearing testimony from the provider’s many experts on radio frequency health and safety, engineering, and site planning.

The board denied the application, reciting that the variance would have had a detrimental impact on the public by impairing the site’s aesthetics, would have resulted in an additional higher intensified use in an industrial zone, and would have resulted in overuse of the property resulting in significant traffic, noise, and aesthetic detriments.

The provider sued to challenge the denial as arbitrary, capricious, and unreasonable. The lower court agreed and reversed the board’s decision, finding the record did not support the board’s findings. It noted the municipality had amended its zoning ordinance after the board acted and now permitted wireless telecommunications facilities in the industrial zone as a conditional use. The court also found the variances would not result in any substantial aesthetic detriment to the neighborhood, there would not be a more intensive use of the property, and the unmanned facility would generate no noise, traffic, or congestion.

The lower court further found that there was no support in the record for the board’s finding that the monopole would have been a substantial detriment to the zoning plan, even near a neighboring residential zone. It found that the provider had offered to accept reasonable conditions by camouflaging the monopole with tree cover in order to reduce any perceived negative impacts associated with the site.

The lower court’s ruling was appealed, but the Appellate Division affirmed, finding the provider had sought a use variance, which could be granted if there would be no substantial detriment to the public good and if the use would not substantially impair the intent and purpose of the zone plan and the zoning ordinance. It agreed the provider had presented sufficient evidence to show the site was particularly suitable for a monopole to increase coverage. It was located in an industrial zone, and a monopole on other sites would be more visible to residential neighborhoods. The Court noted the provider offered options to disguise the monopole, and offered testimony that although the monopole would be visible, it would not constitute a substantial detriment. Further, an expert for the applicant testified the pole would not be lit, would generate minimal noise, and would not emit any odor, smoke, glare or dust. Lastly, there was no evidence indicating the monopole would have any impact on traffic or cause congestion in the area. Further, the record did not support the board’s contention that the monopole would result in an overuse of the property.

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