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T-Mobile Northeast, LLC v. Township of Cherry Hill Zoning Board of Adjustment

A-6020-07T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; TELECOMMUNICATIONS — A zoning board acts arbitrarily, capriciously, and unreasonably when it does not appreciate that an applicant’s proposed telecommunications is a permitted accessory use in the zone and that the nature of such a facility advances the public good.

A wireless communication company applied to a municipal zoning board for site plan approval and for a bulk variance to construct a 130 foot monopole with nine communication antennas on a concrete pad located within a fenced compound. The subject property already had a commercial storage facility, a restaurant, and a fast food restaurant. It was located in a business zone, adjacent to a state highway. The company had proposed to place the equipment in the left rear corner of the property.

Telecommunication towers and antennas were permitted in the zone only as accessory uses. The applicant needed use, height, and setback variances, as well as minor site plan approval. The application proceeded on a bifurcated basis. The board first considered only the use and height variances and granted both, with conditions on the use variance, including that there would be signs or lighting and there would be limits on tree removal.

The board next heard testimony concerning the site plan approval and a setback variance, as the company wished to locate its project 65 feet from a highway jughandle. The ordinance required towers to be 195 feet from a highway right-of-way. The variance request was based on hardship and special reasons. A planner for the applicant testified that the property’s only undeveloped areas were its perimeter yards, and the company wished to locate the wireless facility in the rear yard of the property. The planner said the facility would be screened by the commercial buildings and existing vegetation, and that the adjoining jughandle roadway was higher than the proposed location. The owner of the commercial site testified that the proposed location would obscure the facility from passersby, and that there was no other location on the property for the tower that would not interfere with existing operations.

The board denied the setback variance and site plan. This decision was then litigated, appealed and, pursuant to a resulting settlement, the company presented the board with an alternative design for the tower. The company proposed a flagless, flagpole design for the tower, reducing the area to be occupied by the facility. This reduction would eliminate the need to remove any trees. In addition, the company proposed to increase the vegetative buffer. The testimony was that the only area of the property that conformed to the setback requirement was in the front parking lot of the storage facility, and that this would be more visible to the community because the wireless facility would not be screened by the storage facility. The expert planner testified that the requested setback variance would enhance the visual environment because the ground level of the facility would be effectively screened.

The board again denied the site plan application, holding that the tower could be placed on other locations within the property that did not require a variance, and therefore the company failed to establish the necessary hardship required for a bulk variance. The board believed that the setback requirement was intended to place cell towers as far away from a road as possible, and the site chosen by the company was contrary to this intent. The lower court affirmed the board’s decision to deny the bulk variance, agreeing the purpose of the setback was to place a monopole as far back as possible from all roadways.

The applicant appealed, and the Appellate Division reversed. It gave weight to the board’s findings of fact at the earlier hearing at which use and height variances were granted. In initially granting the variances, the board generally commented favorably about the property being a good location for the facility, and some findings seemed to refer favorably to the specific site in the rear of the storage facility and proximate to the jughandle. The Court held that the board, in its later findings denying the site plan approval and bulk variance, did not acknowledge uncontroverted evidence that the ground improvements would be virtually invisible from the jughandle and that the storage facility minimized the visual impact of the monopole. It found the board’s obsession with the conforming location at the front of the property undermined aesthetic concerns and caused it to fail to properly evaluate the negative criteria. The Court also opined that the board did not seem to appreciate that a telecommunications facility was a permitted accessory use in the zone and the nature of the facility advanced the public good. It concluded that the board’s denial of the setback variance was arbitrary, capricious, and unreasonable.

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