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T-Mobile Northeast LLC v. Township of Freehold Zoning Board of Adjustment

A-2863-10T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; VARIANCES —Neither a previous denial on a site owner’s request for a variance nor on ongoing violation by the property owner will bar approval of a new application for a variance that contains significant changes from the one that was previously rejected.

A cellular telephone provider identified a coverage gap within a municipality. After analyzing suitable sites, the provider negotiated a lease to construct a 120-foot monopole and supporting equipment in an R-120 zone where the permitted uses were single-family dwellings, certain farm uses, public buildings, and parks. Placing a cellular tower on the site required a use variance, for which the provider applied. The municipality’s zoning board of adjustment denied the application, noting that the current commercial use of the property was not a permitted use in the R-120 zone.

The provider then challenged the board’s ruling. The lower court found that the board’s finding were “without foundation in the evidence, [were] conclusory, and [were] based on no evidence in the record.” It concluded that the board had dwelled on the provider’s failure to identify more than three alternative locations, and by focusing on the issue of whether the existing uses on the subject property were illegal.

The board appealed the lower court’s decision. In order to obtain a variance, an applicant must satisfy both positive and negative criteria. The Appellate Division held that “in applications for variances and/or site plan approval concerning telecommunications facilities, we have held that the positive criteria are satisfied where the carrier is licensed by the FCC and [the applicant] proffers credible testimony establishing that a coverage gap exists.” The Court agreed with the lower court that the board’s weighing of the positive criteria and negative criteria leading to the conclusion that the grant of the variance would cause a substantial detriment to the public good was arbitrary, capricious, and unreasonable. The board’s conclusory findings that the cell tower would impinge on the light, air, and privacy of the surrounding properties were not supported by substantial evidence in the record.

The Court rejected the board’s ruling that the previous denial of the site owner’s request for a variance to use the site for a landscaping business and the ongoing violation by the property owner prevented approval of the application. Land use boards can consider a second application for a variance if the application contains significant changes that are sufficient. Here, the provider’s application was for a different use from the previous application.

Therefore, the Court affirmed the lower court’s ruling that granted the use variance to construct a telecommunications tower and held that the previous non-permitted use of the property was irrelevant.

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