Posted by: Patricia Salkin | January 21, 2014

NJ Appeals Court Upholds Reversal of Board’s Variance Denial for Cell Tower and Remands for Site Plan Review

In another controversy over the construction of a cellular phone tower, the Borough of Midland Park Zoning Board of Adjustment (Board) squared off against New York SMSA Limited Partnership (doing business as Verizon and T-Mobile). The controversy began when the Board denied a joint Verizon and T-Mobile application for use and height variances, and failed to consider applications for site plan approval and additional bulk variances. The trial court reversed the Board’s decisions, ordering it to issue the requested variances and remanded the case back to the Board for consideration of the site plan application. The Board appealed, arguing that the trial court failed to consider the carriers’ inability to meet criteria for the variances. The Superior Court of New Jersey affirmed.

The debate originally centered around the construction of two ninety-foot monopoles, which have been described as flagless flagpoles. Surrounding each pole, the carriers proposed an eighteen by forty-foot fenced compound containing an equipment shed, an above-ground generator, and three equipment cabinets. The proposed location was situated on a commercial lot that also contained a shopping center, anchored by a Sears hardware store, and was adjacent to a residential zone. As a result, one pole would be 121 feet from the nearest residential property and 158 feet from the nearest house.

The carriers needed a use variance because the borough permitted wireless communication towers on municipally-controlled property only. A height variance was also required because the towers were not separated from residential property by at least 200 feet. Multiple other bulk variances were also required to remedy violations including: excessive lot coverage; the equipment shelter’s height and setback; tower setback and separation; and the above ground generator, which violated a below-grade requirement mandated in the B-3 zone ordinance.

The Midland Park Zoning Board held nine hearings between May 2010 and February 2011 to address the cellular antenna issues. The Board and the carriers each called radio frequency experts to address issues regarding gaps in service, utility of the site, and feasibility of alternative sites and technologies. Generally, all the experts agreed that there were gaps in service, and that the proposed technology was the best way to remedy the gap.

At the Board’s suggestion, the carriers explored placing the facility in a different location, both within the shopping center and on a different commercial lot. However, the alternative on-site location would have been more prominent and off-site locations were unavailable. The carriers also alternatively proposed a single 120-foot tower that could accommodate additional carriers as well, which would obviate the need for more towers in the future, as demand increases. Despite these accommodations, the Board denied the use, height and bulk variances on July 13, 2011. The board based its decision on findings that the site was not particularly suited to cellular tower use, given that the shopping center was already over-utilized and lacked parking, was too close to residences, and would pose a substantial detriment in terms of its visual impact.

In lieu of filing challenges to the Board’s resolution, the carriers instead filed a complaint seeking a declaratory judgment. On May 7, 2012, the trial court reversed the Board’s denial, finding that the carriers had satisfied the criteria for the use variances and that the bulk variances were to be permitted because they were all either subsumed, de minimis, or responsive accommodations to Board concerns.

Using an abuse of discretion standard, the appellate court considered the Board’s argument that Verizon and T-Mobile failed to satisfy the criteria for a use variance. To satisfy the “positive” criteria, a use must promote the general welfare and be particularly suited for the site. An applicant need not disprove the existence of possible alternative sites in order to show that a given site is suitable. To satisfy the “negative” criteria, a use may not substantially impair the purpose and intent of a zoning ordinance, or constitute a substantial detriment to the public good.

In order to determine whether negative criteria outweighs positive criteria, the court stated that a zoning board should first identify a public interest at stake. Next, the board should identify whether granting a variance would result in any detrimental effect. Then, the board may reduce such detrimental effects by imposing reasonable conditions on the use. Finally, the board should then weigh the positive and negative criteria to determine whether, on balance, granting a variance would cause a substantial detriment to the public good.

Applying this test, the appellate court found that the trial judge was correct in finding that all criteria had been met. All of the radio frequency experts agreed that the site would address a significant gap in coverage. The record was replete with evidence of the carriers’ substantial efforts to accommodate Board concerns, such as creating five additional parking spaces to replace ones that would be removed near the site, and relocating the generator to a rooftop. Further, the appellate court held that there was insufficient evidence that a cellular antenna would adversely affect the aesthetic value of the neighborhood.

In sum, the Board failed to show that granting the variance would cause a substantial detriment to the public good. Thus, the Board was directed to issue the variance subject to any reasonable conditions for a single 120-foot pole. As for the bulk variances, the appellate court again agreed with the trial court that the accompanying variances were either subsumed or were otherwise justified, considering the negative and positive criteria. Since the cellular tower met a public need for reliable cell service, its benefit outweighed the slight detriment caused by adverse visual impact.

New York SMSA Limited Partnership v. Borough of Midland Park Zoning Board of Adjustment, 2013 WL 6479995 (NJ Sup. 4/30/2013).

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