NEW YORK SMSA v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3872-04T33872-04T3

NEW YORK SMSA, a New York

Limited Partnership d/b/a

Verizon Wireless,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF EDISON,

Defendant-Appellant.

___________________________________________________

 

Submitted December 12, 2005 - Decided

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. MID-L-2787-03.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys for appellant (Jeffrey B. Lehrer, of counsel; Michael V. Cresitello, Jr., on the brief).

Hiering, Dupignan, Stanzione & Dunn, attorneys for respondent (Richard D. Stanzione, on the brief).

PER CURIAM

Plaintiff New York SMSA Limited Partnership (plaintiff) unsuccessfully applied to the defendant Zoning Board of Adjustment of the Township of Edison (the board) for preliminary and final site plan approval, along with use and bulk variances. Plaintiff sought to place a twelve-foot high antenna on an existing 103 foot high transmission tower (the GPU Tower) which would have raised its current height an additional eleven feet. As part of its application, plaintiff proposed to place, at the foot of the GPU Tower, an equipment shelter within a fenced compound. When the board rejected this application, plaintiff filed a complaint in lieu of prerogative writs.

After hearing the argument of counsel, Judge James P. Hurley remanded the matter to the board so it could receive and consider additional testimony regarding the availability of another site (the McDonald's site) as well as the impact of plaintiff's application upon the community, zone plan and master plan. The board held additional hearings and once again denied the application.

Upon the return of the matter to the trial court, and after hearing the argument of counsel, Judge Hurley determined that the board's denial of the application was arbitrary, capricious and unreasonable. He entered final judgment in favor of plaintiff on February 25, 2005. The board appealed and we now affirm.

In his oral decision, Judge Hurley thoroughly and carefully considered and discussed the legal principles to be applied to the factual circumstances. We affirm substantially for the reasons set forth in Judge Hurley's oral decision, adding only the following few comments.

As Judge Hurley recognized, in seeking a use variance, plaintiff was required to prove both the positive and negative criteria contained in N.J.S.A. 40:55D-70(d). The positive criteria require that special reasons for the grant of the variance be established. Sica v. Board of Adjustment, 127 N.J. 152, 156 (1992). "Special reasons" are defined by resort to the purposes of zoning, with an emphasis "on the promotion of the general welfare as the zoning purpose that most clearly amplifies the meaning of special reasons." Medici v. BPR Co., 107 N.J. 1, 18 (1987).

It is generally understood that if the proposed use is inherently beneficial then the positive criteria are presumptively satisfied. Smart v. SMR of New York, Inc. v. Bor. of Fair Lawn, 152 N.J. 309, 323 (1998); Medici, supra, 107 N.J. at 12-13; Ocean County Cellular Tel. Co. v. Tp. of Lakewood, 352 N.J. Super. 514, 522 (App. Div.), certif. denied, 175 N.J. 75 (2002). While the Court in Smart did not conclude that a telecommunications tower, such as that proposed by plaintiff herein, is an inherently beneficial use -- stating its "reluctan[ce]" to do so "at this time," Smart, supra, 152 N.J. at 329 -- it did hold that the existence of an FCC license establishes that a proposed telecommunications tower promotes the general welfare, id. at 336. It further held that to meet the positive criteria, the applicant must demonstrate that the proposed site is particularly suited for the proposed telecommunications facility. Ibid. In short, "there must be a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought." Medici, supra, 107 N.J. at 16.

As Judge Hurley recognized, in applying these standards, the undisputed facts and expert testimony revealed that there is a significant gap in coverage in the Edison area that would be served by the proposed structure. In addition, the particular suitability of this site was demonstrated by the fact that plaintiff was proposing to place its antenna, or monopole, on an existing power line tower. See Smart, supra, 152 N.J. at 333. Indeed, it is undisputed that the proposal called for adding an antenna or monopole that would cause the height of the GPU Tower to be increased by a mere eleven feet, from its current 103 feet to 114 feet. As a result, it was convincingly demonstrated that the subject site was peculiarly suited for the use.

Notwithstanding, the board argued that the GPU Tower site was not suitable because, in its view, plaintiff failed to demonstrate that the McDonald's site was not available. The board apparently felt that the preferred site for this antenna was the so-called "McDonald's site" because that site was in a commercial zone whereas the GPU Tower was located within 100 feet of residences. However, the record indicates that McDonald's was largely unresponsive to plaintiff's inquiries about the site's availability and that when it did sporadically respond, McDonald's demands regarding the amount of rent sought represented a perpetually moving target. The record even discloses that one board member made the unusual suggestion that he inject himself into the negotiations. But, when McDonald's ultimately committed to a price, its demand proved exorbitant and no further negotiations yielded a fair compromise for plaintiff's use of the McDonald's site.

In similar circumstances, we have held that a telecommunications provider need only make reasonable and good faith efforts to find an alternative, more suitable site. Ocean County Cellular, supra, 352 N.J. Super. at 528. A board cannot based its denial on a provider's failure to "negate the possible existence [of other sites] that might have served better and been less intrusive." Id. at 529 (quoting New York SMSA v. Board of Adjustment, 324 N.J. Super. 149, 161 (App. Div.), certif. denied, 162 N.J. 488 (1999)). See also New York SMSA v. Tp. of Mendham, 366 N.J. Super. 141, 163 (App. Div.) ("Zoning boards do not have carte blanche to reject an application based on conjecture that a possible alternative site is both suitable and available."), aff'd o.b., 181 N.J. 387 (2004). Considering these circumstances and all other aspects of the record thoroughly discussed by Judge Hurley in his oral decision, we are satisfied that the record conclusively demonstrates that the McDonald's site was not available and that the GPU Tower site was peculiarly suited for this use.

The negative criteria require proof that the variance can be granted "without substantial detriment to the public good" and that the grant "will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d). In applying this principle to a telecommunications provider, a court is required to utilize the Sica balancing test, and (1) "identify the public interest at stake," recognizing that "some uses are more compelling than others," (2) "identify the detrimental effect that will ensue from the grant of the variance," (3) if necessary, "reduce the detrimental effect by imposing reasonable conditions on the use," and (4) "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance could cause a substantial detriment to the public good." Sica, supra, 127 N.J. at 165-66. We are satisfied, as was Judge Hurley, that the board misapplied this balancing test. Indeed, considering the minimal impact caused by the addition of eleven feet in height to the existing GPU Tower, and the absence of any detrimental impact on the public, we agree with Judge Hurley that the rejection of this application was arbitrary, capricious and unreasonable.

 
Affirmed.

The record reflects, among other things, that plaintiff had presented to the board the opinion of a real estate appraiser who not only determined that the granting of the application would not cause a decline in property values but that, for unknown reasons, residences closer to the tower actually sold for higher values than those further away. When the board members expressed doubt about this, it decided to retain its own appraiser at plaintiff's expense. This additional appraisal also resulted in the determination that property values remained unaffected by a property's nearness to such an antenna.

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A-3872-04T3

 

January 5, 2006