Zoning Board of Adjustment denied an application by plaintiff for variances required to build a wireless communications facility. Specifically, plaintiff filed an application for site plan approval as well as variances to build a ninety-foot monopole to address a gap in wireless telecommunications coverage. In denying the application, the Board stated that the residential nature of the neighborhood “obligated the plaintiff to employ…the best means of camouflage of the equipment…” Since the plaintiff only considered two camouflage options, the Board determined the alternative means were not sufficient in preserving the nature of the neighborhood.
Plaintiff appealed and the trial court determined that the denial was not warranted simply because plaintiff did not use the “most effective means of camouflage.” The Board appealed and argued that the trial court decision should be reversed because plaintiff did not satisfy its burden concerning the best and highest means of camouflaging the equipment and that the trial court exceeded the scope of its review when it ruled on the issue of use variance.
Here, the Court determined that the applicable statute did not require a balancing test between the positive and negative criteria, balancing is important and was implicit from the statutory language. Further, the Court determined that only a substantial detriment would support denying a variance. The Court disagreed with the Board’s failure to comply with the applicable requirements in the zoning law because it failed to balance both the positive and negative impacts of the facility. Instead of balancing, the Court determined that the Board focused primarily on plaintiff’s failure to find the most effective means of camouflage. As such, the trial court’s decision was upheld.
T-Mobile Northeast, L.L.C. v. Zoning Bd. of Adjustment, 2011 WL 589583 (N.J.Super. A.D. 2/22/2011)
The opinion can be accessed here
