Plaintiffs applied for variances and site plan approval to construct a wireless telecommunications facility (a 127 foot cellular service tower with a 40ft by 30ft fenced-in equipment shelter). The use variance was denied because the board determined that the plaintiff was unable to prove that there was a gap in coverage, that it had investigated the use of alternative sites that were not as close to residential areas as the one proposed, or that it was unable to use existing facilities or locations in adjacent municipalities. The decision to deny the use variance was reversed by the trial court. Intervenors appealed the decision alleging that the trial judge did not give proper deference to the Board’s decision to deny the use variances, incorrectly assessed the adequacy of evidence presented regarding the fit between the proposed site for the proposed use and the possibility of constructing the facility elsewhere. The intervenors also alleged that the trial judge inappropriately rejected the board’s finding that the negative criteria outweighed the positive criteria. The Appellate Division reversed the trial court based on its determination that Verizon failed to demonstrate that it had adequately explored less intrusive areas in which to construct the proposed facility.
The controversy in this case surrounded whether the proposed use was particularly suitable for the site. Suitability is proven by demonstrating that there is a need for the facility in a particular location, which is in turn shown by evidence of a gap in coverage. A gap in coverage will be determined by expert testimony, however, the board hearing the testimony has discretion over whether it accepts testimony offered by the experts, so long as the discretion is exercised in a reasonable manner. In this case, the board chose to reject the plaintiff’s expert testimony regarding the gap in coverage, despite agreement as to the nature and span of the gap by the board’s own expert. The plaintiff’s expert reported on studies of the area but this testimony was rejected in favor of the opinion of the board’s expert that the gap was less substantial than suggested, which was unsupported by any data or testing. Based on its decision to validate the opinion of its own expert over data provided by Verizon’s expert, the Appellate Division determined that the board’s finding of Verizon’s failure to prove that there was a gap was arbitrary, capricious and unreasonable.
However, the finding of an arbitrary, capricious, and unreasonable acceptance of one expert’s testimony over that of another did not end the court’s analysis of this matter. The Appellate Division determined that Verizon was required to demonstrate that the proposed facility would fill the gap in coverage in the least intrusive manner possible. Because Verizon failed to provide adequate explanation for declining to explore other pre-existing towers or other non-residential areas, which would be less intrusive, as sites for the proposed facility, the Appellate Division determined that Verizon did not fulfill the good faith requirement to explore these options and reversed the decision of the trial court.
New York SMSA Limited Partnership d/b/a Verizon Wireless v. Zoning Board of Adjustment of the Borough of Tenafly, 2010 WL 2089740 (N.J. Super. A.D. 5/24/2010).
The opinion can be accessed at: http://www.leagle.com/unsecure/page.htm?shortname=innjco20100524178
