NEW YORK SMSA LIMITED PARTNERSHIP v. MAYOR AND COUNCIL OF THE BOROUGH OF FANWOOD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4403-04T14403-04T1

NEW YORK SMSA LIMITED PARTNERSHIP,

a New York Limited Partnership,

d/b/a Verizon Wireless,

Plaintiff-Respondent,

v.

MAYOR AND COUNCIL OF THE BOROUGH

OF FANWOOD, and PLANNING BOARD OF

THE BOROUGH OF FANWOOD,

Defendants-Respondents,

and

SUZANNE GAUTIER,

Intervenor-Appellant.

_______________________________________

 

Argued May 16, 2006 - Decided July 24, 2006

Before Judges Skillman, Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, L-4576-03.

Suzanne Gautier, intervenor-appellant, argued the cause pro se.

Richard D. Stanzione argued the cause for respondent New York SMSA Limited Partnership, a New York Limited Partnership, d/b/a Verizon Wireless (Hierling, Dupignac, Stanzione & Dunn, attorneys; Mr. Stanzione, on the brief).

Joseph J. Galfy argued the cause for respondent Planning Board of the Borough of Fanwood (Kochanski, Mega & Galfy, attorneys; Robert J. Mega and Eileen L. Linarducci, on the brief).

No brief was filed on behalf of the Borough of Fanwood.

PER CURIAM

Following six public hearings before the Fanwood Planning Board spanning nearly twelve months, respondent New York SMSA Limited Partnership, doing business as Verizon Wireless ("Verizon"), obtained use and bulk variances allowing it to attach cell phone antennas to an existing utility tower in Fanwood and to build supporting equipment at the base of that tower. After the Fanwood Borough Council nullified the variances in response to protests from neighborhood objectors, the Law Division conducted a two-day trial and reinstated the variances. One of the neighborhood objectors, Susanne Gautier, appeals the Law Division's final judgment. We affirm.

I.

Plaintiff Verizon is a wireless communications carrier. Its cell phone service had a gap in coverage in the vicinity of Fanwood, Plainfield and North Plainfield, with its subscribers in that area experiencing about 3,500 failed calls per day, or about five to ten percent of all calls. Verizon investigated the possibility of filling this service gap with the installation of additional antennas and ancillary equipment.

After investigating several potential locations, Verizon selected a site located along Elm and North Avenues in Fanwood, designated as Block 50, Lot 30 on the Borough's tax map. There is an existing utility tower owned and operated by Public Service Electric & Gas Co. ("PSE&G") on that site. The site is on two acres surrounded by single-family residences, and is located in an R-75 residential zone in which telecommunications facilities are not permitted uses under Fanwood's zoning ordinances.

In January 2002 Verizon applied to the Fanwood Planning Board for use and bulk variances for the site. Specifically, Verizon sought to "flushmount" twelve antennas at the top of the existing PSE&G tower, without extending higher than the existing tower. Verizon also sought permission to construct equipment cabinets at the tower's base, which would be screened by a fence 34 feet by 18 feet in area and seven feet high. The fence would be comparable to wooden fences used in yards within the neighborhood. Within the fenced-in area, Verizon would build a 10.5 foot by 26 foot concrete pad. Seven equipment cabinets to support the antennas would rest on the pad. Four small trees would be removed to accommodate the fenced-in area.

The use variance was necessary because Verizon's proposed antennas were in a residential zone. The bulk variances were requested in order to (1) exceed the zone's thirty-five foot general height limitations; (2) reduce by eight feet the usual required fifty-foot distance for construction near a gas line; and (3) create a 360 square foot storage area in excess of the 200 square-foot building permitted.

A series of expert witnesses testified before the Planning Board in support of Verizon's application. The public citizens in attendance had the opportunity to question those experts. David Stern, a radio frequency expert, confirmed Verizon's coverage gap in the area, and opined that the proposed facility would fill about ninety-five percent of that gap. The Board's own expert on this issue concurred. The frequency of "dropped calls" was confirmed in testimony by Stern's engineering partner, Dominic Villecco. Stern also described Verizon's efforts to explore alternative sites to the subject property on Elm and North Avenues, a central issue of this appeal that we shall address hereafter in more detail.

The Planning Board also considered expert testimony from Verizon's professional planner, James Dowling. Dowling contended that the chosen site was especially suited for the antenna facility. In particular, he noted that the facility, by virtue of Verizon's federal communications license, would serve the general welfare; would fill a substantial gap in cell phone coverage; would have the advantage of utilizing an existing tower rather than requiring construction of a new one; was compatible with PSE&G's public utility uses already conditionally permitted on the site; and would be significantly obscured from view because the property was heavily treed. Dowling opined that the antenna facility would cause no detriment to the zoning scheme because it created no noise, smoke, glare or dust and would draw minimal traffic. Dowling also testified that the screened cabinets and attached antennas would create no substantial adverse visual impact for the surrounding residences.

Lastly, Verizon presented expert testimony from Robert Vance, a certified real estate appraiser. Vance acknowledged that homebuyers often have reservations about proximity to high-tension power lines, but opined that altering the PSE&G tower with Verizon's proposed antennas would not likely cause any significant negative impact upon the real estate values of the surrounding properties.

The Board also heard comments from some twenty-three neighborhood objectors. Most of the objectors contended that the proposed Verizon facility would impair the residential character of the neighborhood, particularly on matters of aesthetics and the recreational use of the PSE&G property. Several objectors stated that the grassy site had been utilized as a form of neighborhood park where children would often play, notwithstanding the presence of the high tension wires there 115 feet above the ground. The objectors also questioned the impact of the proposed use on their property values. The objectors offered no competing qualified expert testimony.

After considering these extensive proofs, the Planning Board on June 25, 2003 approved, by a five-to-two vote, the use and bulk variances sought by Verizon. An appeal was then taken by citizen-objectors to the governing body, the Fanwood Borough Council. The Council considered the matter at a special meeting on October 29, 2003. The Council did not take any sworn testimony, but instead considered the testimony and record from the Planning Board hearings. After considering arguments from the citizen-objectors, Verizon and the Planning Board's representatives, the Council, by a four-to-zero vote, reversed the Board's issuance of the variances to Verizon. Several of the Council members, in the course of stating on the record the reasons for their respective votes, expressed concerns that Verizon had inadequately considered placing the antennas at an alternative location in lieu of the Elm/North Avenue residential neighborhood. The Council's vote was memorialized in a resolution dated November 11, 2003.

Verizon then filed an action in lieu of prerogative writs in the Law Division, seeking to reinstate the Planning Board's approval of its application. Appellant Gautier, who is self-represented, was granted leave to intervene in the case. Council for the Borough appeared in opposition to the application. The Law Division judge heard the matter in February 2005, including a site inspection of the subject property. The judge considered the record of the municipal proceedings, as well as presentations from counsel for Verizon, the Planning Board, the Borough's counsel, and Ms. Gautier.

Based upon the record Judge Walter Barisonek issued an oral decision on March 10, 2005 reinstating the use and bulk variances awarded by the Planning Board. Judge Barisonek concluded that Verizon's application satisfied the positive and negative criteria for a variance under N.J.S.A. 40:55D-70d. Among other things, the judge found that the site "is in fact particularly suited for telecommunications facilities and . . . will fill a significant gap that all [parties and objectors] agree exists." The judge also found that Verizon had "established through expert testimony that [it had] made a good faith effort to explore other alternative sites," and that there was "nothing in the [B]oard's record to contradict [Verizon's] engineers finding that there were no other suitable sites in this area not considered by [Verizon]." As the judge analyzed it, "the proposed site will not substantially impair Fanwood's zoning plan or zoning ordinance because the attachment of antennas to an already existing tower and the proposed storage shed will have . . . minimal [aesthetic] or environmental [e]ffect."

The judge specifically considered the objectors' concerns that the proposed facility would face the front yard of certain residences, but noted that the facility would not be significantly altering the residents' views, as "[a]ll [such residents] are going to see if anything is a board-on-board fence that anybody could have in their backyard." The judge found that such fencing would not be so aesthetically harmful or obtrusive as to affect surrounding property values adversely "or the use that the public may enjoy and that PSE&G may permit of their right-of-way." The judge also noted that the distances from the surrounding homes to the cabinets to be constructed on the site were nearly 250 feet. The judge also rejected the neighbors' argument that the fenced-in cabinets would present an attractive nuisance to children. He further noted that "a line of brush and some small trees" would continue to provide some visual screening for the site.

Additionally, the judge rejected specific concerns raised by Ms. Gautier that the new facility would create undue rutting and mud problems and would be unattractive, noting that Verizon planned to use PSE&G's existing access roadway to the site but would have it paved. To accommodate Ms. Gautier's concerns on this point, however, the judge imposed a restriction on the variance so that the access road to the fenced-in cabinets would not extend to the other side of the tower.

Given these numerous findings, Judge Barisonek determined that the Borough Council's reversal of Verizon's approved variances was "arbitrary and capricious." The judge therefore reinstated the variances, adding the roadway condition previously mentioned as well as a condition that Verizon fulfill its commitment to place shrubbery around the board-on-board fence.

The trial judge's order was solely appealed by the intervenor, Ms. Gautier. During the pendency of the appeal, Ms. Gautier applied to us for a stay of the trial judge's order, which was denied. We understand from oral argument that construction of the facility has been nearly or fully completed.

II.

The applicable law governing land use variances is well-settled and codified at N.J.S.A. 40:55D-70d, which recites in pertinent part:

The board of adjustment shall have the power to:

. . . .

d. In particular cases and for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard

. . . (4) an increase in the permitted floor area ratio . . . (5) an increase in the permitted density . . . (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure.

. . .

. . . .

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. . . [.]

The variance statute "requires proof of both positive and negative criteria." Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 156 (1992). Under the positive criteria, the applicant must establish "special reasons" for the grant of the variance. Ibid. To satisfy the positive criteria, an applicant must prove that "the use promotes the general welfare because the proposed site is particularly suitable for the proposed use." Medici v. BPR Co., 107 N.J. 1, 4 (1987). If the proposal is inherently beneficial, an applicant's burden is significantly lessened, since an inherently beneficial use presumptively satisfies the positive criteria. Smart SMR v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998).

With respect to telecommunications towers, an FCC [Federal Communications Commission] license generally establishes that the use promotes the general welfare. Nextel of N.Y. v. Englewood Cliffs Bd. of Adjustmnet, 361 N.J. Super. 22, 37 (App. Div. 2003). However, an applicant for a telecommunications facility must still show that the site is particularly suited for the use in order to establish the positive criteria. Ibid. The Supreme Court has yet to declare that wireless telecommunications facilities are, per se, "inherently beneficial" uses. See Cell South of N.J., Inc. v. Twp. of W. Windsor Zoning Bd. of Adjustment, 172 N.J. 75, 90-91 (2002). However, the Court has previously indicated in dictum that a cell phone facility that "does not require a tower or monopole, such as one that simply involves appending antennas to an existing structure," may present a stronger case of beneficial features than does a communication facility requiring the construction of a new structure. Smart, supra, 152 N.J. at 331.

The negative criteria prong under the statute requires proof that the variance "can be granted without substantial detriment to the public good." Id. at 323. Further, an applicant must demonstrate through "an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and the purpose of the master plan and zoning ordinance." Medici, supra, 107 N.J. at 21. In making the determination of whether the negative criteria have been satisfied in a telecommunications case, the court must weigh the positive and negative criteria to determine whether, on balance, the grant of the variance would cause a "substantial" detriment to the public good. Sica, supra, 127 N.J. at 164; Smart, supra, 152 N.J. at 332.

When balancing the positive and negative criteria to determine whether a grant of the variance would be without substantial detriment, the Court in Sica supplied the following guidelines: First, the public interest at stake should be identified, recognizing that some interests are more compelling than others. Sica, supra, 127 N.J. at 165. Second, the detrimental effects, such as traffic, residential character, utility, or value, should be considered. Id. at 166. Third, in some situations, the Board may reduce detrimental effects by imposing reasonable conditions on the use, and if it does, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions. Ibid. After considering these factors, the Board should weigh the positive and negative criteria to determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. Ibid.

Our scope of review in this context is limited. A council or zoning board's decision on a variance application may be set aside only when shown to be arbitrary, capricious or unreasonable. Cell South, supra, 172 N.J. at 81; New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999); Smart, supra, 152 N.J. at 327. This deferential standard stems from the recognition that local officials who are familiar with the community's characteristics and interests are best equipped to pass on variance applications. Kramer v. Sea Girt Bd. of Adjustment, 45 N.J. 268, 296 (1965). A court will not disturb a board's decision unless it finds a "clear abuse of discretion." Cell South, supra, 172 N.J. at 82; Riese-St. Gerard Housing Corp. v. City of Patterson, 249 N.J. Super. 205, 215 (App. Div. 1991). The standard of review is the same for both the Law Division and a reviewing court. Bressman v. Gash, 131 N.J. 517, 529 (1993).

In this particular case, the procedural history leading to our review is complicated somewhat by the interceding November 2003 decision of the Fanwood Borough Council to nullify the variances granted to Verizon by the local planning board, pursuant to the governing body's review function established under N.J.S.A. 40:55D-17(a). However, we note that the Council was bound to decide the variance objectors' appeal "only upon the record established before the board of adjustment [or planning board.]" Ibid. Because the Council did not remand this dispute back to the Planning Board for any additional testimony or fact-finding, the record before us is confined to the extensive proofs adduced in 2002 and 2003 before the Planning Board.

On appeal, Ms. Gautier raises the following points, which she quite ably explained in further detail to us at oral argument:

POINT I

[THE] TRIAL COURT['S] DETERMINATION THAT [VERIZON'S] SITE SEARCH WAS REASONABLE AND IN GOOD FAITH IS NOT SUPPORTED BY THE RECORD

POINT II

[THE] TRIAL COURT ERRED IN EXCLUDING LESS INTRUSIVE SITES FROM CONSIDERATION BECAUSE THEY WERE NOT ASSERTED BEFORE THE BOARD

POINT III

[THE] TRIAL COURT MADE FACTUAL ERRORS RELATED TO ACCESSWAY AT SUBJECT SITE

POINT IV

[THE] TRIAL COURT['S] DETERMINATION THAT VERIZON'S APPLICATION IS NOT INTRUSIVE IS WITHOUT FOUNDATION

POINT V

[A] REMAND TO THE BOARD IS APPROPRIATE TO CONSIDER LESS INTRUSIVE ALTERNATIVE SITES

POINT VI

[A] REMAND TO THE BOARD IS APPROPRIATE TO ADDRESS PROPERTY VALUES

POINT VII

[A] REMAND TO THE BOARD IS APPROPRIATE TO ADDRESS CO-LOCATION

POINT VIII

[A] REMAND TO THE BOARD IS APPROPRIATE TO ADDRESS MITIGATING IMPACT OF VERIZON'S APPLICATION ON A RESIDENTIAL NEIGHBORHOOD

POINT IX

[THE] TRIAL COURT WAS CORRECT TO REVERSE [THE] COUNCIL'S DENIAL OF A BOARD VARIANCE BUT SHOULD HAVE REMANDED TO THE BOARD

We have fully considered these arguments and, in light of our governing law and the record before us, find none of them sufficiently persuasive to warrant relief from the Law Division's March 18, 2005 order, which we hereby affirm substantially for the reasons expressed in Judge Barisonek's oral decision of March 10, 2005.

The principal argument raised by appellant concerns the alleged inadequacy of Verizon's efforts to investigate alternative sites for the proposed antennas and equipment boxes. In this regard, we have carefully examined the Planning Board record, the proceedings before the Borough Council, and the trial transcripts, in conjunction with the enlarged aerial maps, drawings, photographs and other exhibits furnished to us by counsel at our request following oral argument. Our review of all of these materials reveals the following.

Initially, Verizon considered as many as nine potential sites in Fanwood and in surrounding municipalities for the installation of a free-standing monopole or the attachment of antennas to an existing structure to solve its coverage gap. Eventually, Verizon narrowed down its search to five existing PSE&G towers along PSE&G's right-of-way, running in a north/south direction. According to the testimony of David Stern, Verizon's principal engineering expert, Verizon's first choice was a PSE&G tower located in a light industrial zone. According to Stern, that site was also preferred because it was in the "dead center" of the service area. The other four sites within the right-of-way, including the subject site, were in residential zones. It is undisputed in the record that PSE&G denied Verizon's request to install antennas at the light-industrial zone site because that particular tower already housed equipment from three other cell phone companies.

Verizon's second choice was the subject property, which is the utility tower located just north of the preferred light-industrial zone site. It is apparent from the record, and from the tenor of testimony and colloquy, that the subject property was selected in part because of its proximity to the preferred site in the light-industrial zone.

In addition to the five identified sites along the PSE&G right-of-way, Stern testified that Verizon had considered several other sites, including a tower near Mount St. Mary's, the Ardmore apartment building in Plainfield, a public works building, and the Shackamaxon Golf Course in Scotch Plains. None of these sites, however, was suitable to fill Verizon's gap in coverage. Following the first Planning Board meeting, at the Board's request, Verizon also investigated sites on Front Street and at the Chelsea apartment building. Again, neither of those sites was found suitable to fill the gap in cell phone coverage in downtown Fanwood. In addition, Verizon had attempted to lease space on a municipally-owned nature center, but after public protest the borough withdrew that property from consideration.

During the course of the six Planning Board meetings, there was limited testimony concerning the other three identified towers on the PSE&G right-of-way. It is undisputed that all of these sites, like the subject property, are in residential zones. Thus, all of these sites would have required Verizon to apply for a use variance. It is reasonable to assume that any of these sites would have drawn objections from residential neighbors. The record does not establish that any of those three alternative sites in the right-of-way would have been made accessible to Verizon by PSE&G, or whether there were antennas from other cellular competitors already attached to any of the towers located there.

During the course of the proceedings before the Borough Council, the Council's president, Joel Whitaker, remarked that the proposed site faced the fronts of nearby houses, while "at other towers in the Public Service right-of-way, the cell tower and its associated equipment could be in the backyard or sideyard of a residence." Whitaker also commented that, subsequent to Verizon's application, another cell phone company had successfully applied to the Fanwood Planning Board for permission to place a cellular antenna atop one of the other three towers in the PSE&G corridor. While that particular tower was not mentioned by name at the Council hearing, Verizon in its brief alleges that Whitaker's statement referred to AT&T's application for an antenna at a so-called "LaGrande" site.

We cannot discern with certainty from the record exactly where the "LaGrande" site is situated. At oral argument before us, Verizon's attorney represented that the LaGrande site would have been the tower on PSE&G's right-of-way immediately south of the preferred tower in the light-industrial zone, and two towers south of the subject tower. We have been unable to confirm this representation from our independent review of the maps, photographs, transcripts and other components of the record supplied to us.

Regardless of whether or not the "LaGrande" site is or is not at the posited location, we do not believe that appellant has sustained her burden to set aside Judge Barisonek's specific finding that Verizon had investigated other sites in a manner sufficient to comport with the applicable case law. Verizon's witnesses before the Planning Board, particularly Stern and Dowling, explained with reasonable sufficiency why it regarded the subject tower as most suitable for its antennas once the tower in the light-industrial zone proved to be unavailable. Dowling noted that the subject site, as confirmed by the photographs we have examined, has a considerable amount of trees and other foliage.

We are mindful that the "[z]oning boards do not have carte blanche to reject an application based on conjecture that a possible alternative site is both suitable and available." New York SMSA v. Twp. of Mendham Zoning Bd. of Adjustment, 366 N.J. Super 141, 163 (App. Div.), aff'd, 181 N.J. 387 (2004). By contrast, the comparative advantages of other sites identified in the record are unproven. Verizon's facility faces the front of Ms. Gautier's property and at least one other residence. However, in light of the considerable distance of the equipment boxes from those residences, the landscaping that will partially screen the view of the structure, the board-on-board fencing compatible with other fences in the neighborhood, and the existing presence of a utility tower base that has its own aesthetic drawbacks, we conclude that there is ample substantial credible evidence in the record to support the finding that no further investigation of other residential sites was required. In sum, we perceive no "clear abuse of discretion" by the Planning Board, see Cell South, supra, 172 N.J. at 82.

Appellant also raises secondary arguments that the antenna facility will create excessive rutting and pitting in the right-of-way, when service vehicles come to the site to maintain Verizon's equipment boxes. We are satisfied that the conditions placed by Judge Barisonek on the dimensions of the roadway, fashioned to accommodate vehicles turning around while minimizing disturbance of the grassy right-of-way, reasonably responds to those concerns. We affirm that determination.

The remaining arguments espoused by appellant lack sufficient merit to warrant extended discussion. See R. 2:11-3(e)(1)(E).

 
In conclusion, we affirm the Law Division's March 10, 2005 final judgment reinstating, with certain modifications, the variances awarded by the Planning Board to Verizon.

Appellant Gautier did not testify before the Planning Board, although her failure to do so has no bearing on her ability to prosecute this appeal. She did attend the hearings and, at certain points, posed questions to witnesses.

The Borough Council has not participated in this appeal.

It is unclear from the record whether all five of these locations are situated within the Borough of Fanwood.

(continued)

(continued)

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A-4403-04T1

July 24, 2006