Posted by: Patricia Salkin | March 9, 2016

NJ Appeals Court Reverses Denial of Application for a Conditional Use Variance for Wireless Facility

Plaintiffs T–Mobile Northeast, LLC and New York SMSA Limited Partnership d/b/a Verizon Wireless sought a conditional use variance pursuant to N.J.S.A. 40:55D–70(d)(3) for a wireless telecommunications (WT) facility in the East Business District of the Borough of Mendham. The Board of Adjustment acknowledged that “a gap in appropriate design coverage exists and the proposed facility is located to address that deficiency.” The location was on a property shared by a shopping center in the front portion and health club at the back of the property, adjacent to wetlands and wetlands transition areas. The variance at issue was from a requirement in the ordinance that a WT facility be located in the rear yard of property. Although the proposed placement was behind the loading dock of the supermarket, and therefore in the rear yard of the shopping center, the WT facility would not be in the rear yard of the health club. The Board denied the application, finding plaintiffs’ inability to comply with that condition rendered “it unsuitable for this Conditional Use.” The Board’s decision was affirmed by the trial court.

The Board’s acknowledgement in its resolution that plaintiffs were licensed by the FCC and a coverage gap existed that would be ameliorated by a WT facility at the proposed location provided grounds for the conclusion that the positive criteria were satisfied. As to the negative criteria, the court first analyzed whether the variance could be granted without substantial detriment to the public good. Here, there was no evidence that the deviation from the rear yard condition would damage the character of the neighborhood, or that such damage would rise to the level of a “substantial detriment to the public good.” The court next looked to whether the variance would substantially impair the intent and purpose of the zone plan and zoning ordinance. It found the record was insufficient to support a finding that the variance should be denied to avoid the danger of falling ice or any other safety hazards, and the Board included no such finding in its resolution. The court therefore held that the Board’s denial of the conditional use variance was arbitrary, capricious and unreasonable.

T-Mobile Northeast, LLC v. Borough of Mendham Zoning Board of Adjustment, 2015 WL 10091529 (NJ App. unrep. 2/16/2015)

 


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