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T-Mobile Northeast, L.L.C. v. Zoning Board of Adjustment of the Borough of New Milford

A-3068-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; TELECOMMUNICATIONS — Under law, a zoning board is obligated to engage in a balancing of the positive and negative effects of a telecommunications facility and if the only basis for the rejection of an application is that the telecommunications company had not used the most effective means of camouflage for its facility, that decision will be overturned as arbitrary, capricious and unreasonable.

A wireless communications company filed a zoning board application for preliminary and final site plan approval and for certain variances required for the construction of a 90 foot monopole and related equipment. The company claimed these were necessary to address a significant coverage gap in the wireless telecommunications system within the municipality. The board conducted several public hearings on the application, and then voted to deny the application.

In its resolution, the board said the company had only considered two camouflage options for the pole and this limited analysis of alternative means of camouflage was insufficient to prevent a substantial impairment of the zone plan and zoning ordinance. The company sued, challenging the board’s decision. The lower court found the board’s action to be arbitrary, capricious, and unreasonable. It said the company had satisfied the positive criteria to obtain a use variance to permit the pole in the location desired, and that the positive criteria far outweighed the negative criteria. The lower court also said the variance denial was unwarranted when the only stated basis was that the company had not used the most effective means of camouflage for its facility. Thus, it reversed the board’s decision, granted the variances and site plan approval, and allowed the development to proceed upon the issuance of appropriate construction permits.

The board appealed, but the Appellate Division affirmed the lower court’s ruling, finding the company had presented sufficient evidence to show the proposed site was particularly suitable. It held that the board failed to balance this positive effect with the asserted negative criteria – i.e., the facility would have an adverse visual impact for which the company failed to consider the best means of camouflage. The Court said, under law, the board was obligated to engage in a balancing of the positive and negative effects of the facility. Therefore, it found the lower court was correct in holding the board’s decision to deny the company’s application as arbitrary, capricious, and unreasonable.


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