Posted by: Patricia Salkin | September 24, 2014

NJ Appeals Court Holds that the Minimal Visual Impact of a Monopole Did Not Constitute a Substantial Detriment and Orders Granting of Variance

T–Mobile applied for a use variance to erect a 150–foot monopole that was to have a six-foot lightning rod on top and support up to nine antennae. David Sileo, a West Deptford resident who lived on a property approximately three-hundred feet away from the proposed monopole, testified in opposition, arguing that it would be an eyesore. After hearing the testimony, the Board voted unanimously to approve the variance, contingent on site plan approval. Sileo, acting pro se, filed an action in lieu of prerogative writs challenging the Board’s action. On the return date, the judge granted the Township of West Depford’s (Township) motion to intervene, which it did as a party defendant.

The Township’s answer included a cross-claim against T–Mobile and the Board for: (1) failure to request a height variance; (2) failure to address whether the variance approval would substantially impair the intent or purpose of the R–6 zone; and (3) failure to provide a negative-criteria analysis under N.J.S.A. 40:55D–70(d). The court held that, despite T–Mobile’s failure to explicitly request a height variance, the Board had jurisdiction to grant one. The court concluded that the omission was de minimis in light of three facts: (1) the public notice explicitly stated that T–Mobile was seeking a height variance; (2) objections were heard on the issue during the public hearing; and (3) the Board’s resolution stated that it granted “all necessary and requested variances.” As a result, the court invalidated the grant of the use variance and remanded the matter to the Board.

The Board then voted to deny the variance, and T–Mobile appealed alleging that the Board’s determination concerning impairment of the master plan and zoning ordinance was conclusory and unsupported by facts. The court invalidated the Board’s denial of the variance and directed the Board to grant site plan approval within thirty days. The court retained jurisdiction of the T–Mobile complaint and dismissed the Sileo/Concerned Citizens complaint with prejudice. Counsel for T–Mobile and the Board entered into a settlement agreement, which provided that the Board would be able to pursue an appeal of the use variance, but that it would grant site plan approval with specified changes. The Board again voted to deny site plan approval. T–Mobile filed a motion to enforce litigant’s rights based on the Board’s refusal to comply with the settlement agreement. The judge granted that motion, and the order specified that it constituted the requisite zoning approval to enable T–Mobile to apply for a construction permit and precluded further remands to the Board.

After considering the facts regarding the monopole, the court found that: the use was passive; it generated no noise, no odor, no traffic, no waste, and no light pollution; the existing topography and vegetation would not be disturbed; the setback and other bulk requirements of the zone remained satisfied; and the surrounding buffer zone and existing vegetation would mitigate the negative visual impact of the lower portion of the structure. The court also applied the Sica balancing test in residential districts and concluded that minimal visual impact of a monopole would not constitute a substantial detriment. Accordingly, the court reversed the Board’s denial of T–Mobile’s use variance, and granted T–Mobile’s motion to enforce the settlement.

T-Mobile Northeast, LLC v Township of West Deptford Zoning Board of Adjustment, 2014 WL 4098140 (NJ Sup. 8/21/2014)

The opinion can be accessed at:

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