NEXTEL OF NEW YORK, INC., d/b/a NEXTEL COMMUNICATIONS v. ZONING BOARD OF ADJUSTMENT TOWNSHIP OF EDISON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4851-04T54851-04T5

NEXTEL OF NEW YORK, INC.,

d/b/a NEXTEL COMMUNICATIONS,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT

OF THE TOWNSHIP OF EDISON,

Defendant-Respondent.

_____________________________________________________________

 

Submitted January 19, 2006 - Decided September 27, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, L-5429-04.

Price, Meese, Shulman & D'Arminio, attorneys

for appellant (Gregory D. Meese and Maria

Cristiano Anderson, on the brief).

DiFrancesco, Bateman, Coley, Yospin,

Kunzman, Davis & Lehrer, attorneys for

respondent (Jeffrey B. Lehrer, of counsel;

Michael V. Cresitello, Jr., on the brief).

PER CURIAM

Plaintiff Nextel of New York, Inc., d/b/a Nextel Communications (Nextel) sought approval from the Zoning Board of Adjustment of the Township of Edison (defendant or the Board), to attach six antennas to an existing electrical transmission tower (ETT) and to construct an equipment shelter building at the base of the tower. After the Board denied plaintiff's application, plaintiff appealed to the Law Division, which affirmed the Board's decision. Plaintiff claims that the trial court erred in affirming the Board's decision, because the Board's findings and conclusions are not supported by substantial evidence in the record. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Plaintiff, a wireless communication services provider licensed by the Federal Communications Commission (FCC), applied for permission to install six wireless antennas on an existing 152-foot high-tension ETT, owned by Public Service Electric and Gas Company (PSE&G). Plaintiff proposed to attach the antennas, which are four feet in length, at a height of 139 feet. Therefore, plaintiff's proposal would not increase the height of the existing tower.

The ETT that plaintiff seeks to use is located on a "jughandle island" between the northbound side of U.S. Route 1, Grandview Avenue, and Lafayette Avenue. The property is located in an area designated by the Edison Township master plan for utility use, and is within the R-B Residential Zoning District. Although the Edison Township master plan and zoning ordinance apparently do not specifically provide for wireless telecommunications facilities within the Township, the federal Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 15 U.S.C.A., 18 U.S.C.A., and 47 U.S.C.A.), bars local governments from "prohibiting personal wireless services." Cellular Tel. Co. v. Zoning Bd. of Adjustment of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir. 1999). In his report to the Board, Thomas Sheehan, the Board's planner, described the site and the proposed development as follows:

1. Site Description

The site is an island of 0.1701 acres (7,410 sf), which is part of the PSE&G Linden-Metuchen transmission line right-of-way. The irregularly shaped property is bordered by Route 1, Grandview Avenue and Lafayette Avenue. These streets form a jug-handle, for the signalized intersection of Grandview Avenue and Route 1. There is access to the tower in question from the northbound shoulder of Route 1. The site contains the existing transmission tower. There is an underground gas pipeline located 176' southeast from the proposed site development.

2. Proposed Development

The applicant proposes to add six (6), 4' high antennae to an existing 152' high tower. The installation heights will be at 140', and will be mounted on a new support structure that will be anchored on the existing tower frame. The applicant also proposes construction of a 20' x 27' equipment compound, surrounded by an 8' high chain-link fence with perma-hedge screening. This compound includes a 12' x 20' equipment shelter with three (3) 1' high g.p.s. antennae mounted on the rooftop, two (2) exterior air conditioning units, security lighting and site utilities. A 12' x 20' gravel parking area will be constructed on the site.

Plaintiff's application sought: (1) a use variance for installation of wireless services antennas, which is not permitted in the R-B Residential Zoning District, N.J.S.A. 40:55D-70(d)(1); (2) a height variance of 139 feet, only 30 feet is permitted, N.J.S.A. 40:55D-70(d)(6); (3) a front yard set-back variance of 11.5 feet, 25 feet is required, N.J.S.A. 40:55D-70(c); (4) a maximum lot coverage variance for 74% coverage, where the permitted coverage is 40%, N.J.S.A. 40:55D-70(d)(5); and (5) a minimum gross floor area variance for 240 feet, where 960 feet is required, N.J.S.A. 40:55D-70(d)(4). Plaintiff also sought preliminary and final site plan approval.

Each of the antennas that plaintiff seeks to install is four feet in length, one foot in width, seven inches in depth, and weighs twenty-one pounds. The drawings, which accompanied plaintiff's application, included plans to construct and enclose the equipment shelter by surrounding it with an eight-foot-high chain-link fence with perma-hedge screening. The fence would also be remotely-monitored through motion sensors and an alarm system in the event that a trespasser attempted to climb over the fence. The proposed equipment shelter would measure twelve feet by twenty feet and be ten feet high. The fenced-in area around the shelter would be twenty feet by twenty-seven feet. The shelter does not have any generators, and it does not produce any noise, odor, glare, or dust. The proposed compound would be located approximately forty feet away from the northbound shoulder lane of Route 1. A Nextel technician will need to visit the compound every four to six weeks. PSE&G submitted a letter with plaintiff's application confirming that it approved plaintiff's proposed use of its property.

Nextel proposed to paint the equipment shelter a sandstone color, but its planner advised the Board that plaintiff was amenable to making such changes as the Board may deem appropriate:

There's been discussions tonight about what could be done to possibly ameliorate what this structure would look like in terms of the fencing, in terms of the color, in terms of the shelter itself. And I've had discussions with my client while the meeting was ongoing and he indicated that they're amenable to effectively changing the structure to meet the [B]oard's requirement. So the fence can be removed, the structure can be treated with various colors, with various brick or wood. Even a gabled roof can be put on it to make it appear to be more of a shed like structure that would be associated with the electric utility use that's there right now. So my conclusion concerning this photo simulation[] is that the change in the visual environment is not a significant one and that the cabinets would not block any crucial views to people in vehicles entering or exiting that intersection.

In his report to the Board, the Board's planner warned that sight visibility at the intersection would be impacted "[i]f evergreen screening were provided around the proposed compound," and he recommended that sight triangles be provided by plaintiff "to determine the impact, if any, of the proposed screening." Nextel responded to these concerns by having its civil engineering expert perform "a site clearance and stopping distance analysis," which was sent to the New Jersey Department of Transportation (NJDOT) for review. In a reply letter dated April 14, 2004, Rick Thayer, principal engineer for the NJDOT's Bureau of Traffic, Access, and Landscape-Wireless Communications Unit, stated: "The New Jersey Department of Transportation-Wireless Communication[s] Unit has reviewed the above referenced Nextel proposed plans dated 4/06/04, and has no comments or objection to the proposed location."

On March 30 and May 18, 2004, hearings were held by the Board to consider Nextel's application. Three witnesses testified in support of Nextel's application: Todd Hay, a licensed professional civil engineer; Naimat Mughal, a radio frequency engineer; and James Dowling, a licensed professional planner.

At the first meeting on March 30, 2004, a Board member asked Hay whether the NJDOT planned to widen Route 1. Hay testified that although he had not looked into the matter, he did not believe that the site would be impacted if Route 1 were widened, because the site was located forty feet from the shoulder of Route 1. In response to questions concerning the availability of two existing towers close to the proposed site, Hay indicated that PSE&G "does not allow us to even consider" a tower as a possible site unless it is structurally capable of supporting Nextel's equipment. Hay also stated that it was his understanding that the two nearby towers were too short from a radio frequency standpoint (meaning they would not remedy plaintiff's coverage gap).

Radio frequency engineer Mughal explained plaintiff's coverage gap as follows:

MR. MYERS [Board member]: So this isn't about dropped calls, this is just about you guys seeing a site that is going to fit right in the middle of that area that you think would be appropriate for you to build another antenna on?

[MR. MUGHAL]: No, it is. I mean if you assume that there is a person, there's a subscriber on Route One traveling from south to north [and] reaches . . . the end of the coverage, assume he or she is still in a call, drops it, then tries to make a call here, may be able to jump onto a call which doesn't give him or her a good quality or does give that person quality but then it . . . drops again. And it could be an emergency, it could be an accident over here. There could be other situations. If you're relying on the service, you have a phone, you don't carry two or three phones. It's Nextel that has to work everywhere.

. . . .

MR. BUTVILLA [Board member]: . . . I don't have a Nextel cell phone, if I was to borrow a cell phone and I stood underneath that tower and I made a call on a Nextel phone, would my call get through?

[MR. MUGHAL]: Which tower, the tower we are proposing?

MR. BUTVILLA: Yes. If I stood underneath it and I made a call, would my phone call get through?

. . . .

[MR. MUGHAL]: Like very little probability that you would be able to make a call and keep a quality call. Very little probability.

MR. BUTVILLA: He might get through?

[MR. MUGHAL]: You might get through but you would have problems.

MR. BUTVILLA: It would not be what you would entitle as reliable coverage?

[MR. MUGHAL]: I mean if you are a Nextel customer and using the phone here, I would ask my salesperson why did he sell it to you. Because then he's going to come back to me with your complaint that it doesn't work and I can't fix it.

Mughal further testified that plaintiff has a coverage gap of about one and one-half miles, and that the proposed site would eliminate the coverage gap in an "almost perfect way." According to Mughal, the proposed site was the best available site for eliminating plaintiff's coverage gap, because it would allow a Nextel user to travel along Route 1 without any interruption in service. Mughal explained that if the antennas were installed on the tower of the proposed site, they would provide coverage three-quarters of a mile in every direction, or, in other words, the antennas would provide a coverage radius of one and one-half miles.

In response to questions regarding whether the plaintiff considered other towers in the area, Mughal further explained that when choosing a site, plaintiff's goal is to minimize the number of structures it builds because more structures do not "serve the towns very well." Later in the hearing, Mughal was asked about the adequacy of the two closest existing towers located north and south of plaintiff's proposed site, and he responded:

From [radio frequency] perspective I would not want to move south because of the fact that you may notice I already have overlap to the south, but to the north I have a little bit of [a] gap, that gap will open up. That would call for another site, which I would try to avoid. To the north, from [radio frequency] perspective, I wouldn't want to move two towers, but one tower I can take.

Mughal also told the Board that ground elevation, tower height, terrain height, and the height of nearby buildings all affect coverage. Plaintiff's technology is unique and is not used by any other wireless service provider in the world.

Mughal's unrefuted testimony that Nextel has a significant gap in coverage was based upon a computer software-generated base map with two overlays, and drive-test data. When he was asked whether he was able to determine the location of significant gaps in coverage, Mughal testified as follows:

Absolutely. More actually comes from this software that we used here to do prediction, this software has a lot. It has terrain data. . . . [Y]ou fix and coordinate street data. Some of the areas where if you go to the city and other areas where we have high buildings that's going further into it too. I said terrain heights and everything. Then we put in the . . . power, put in [the] type of antennas, put in the height and then we try to simulate the coverage from it. We still feel that it's inaccurate because it's kind of using the same formula for everywhere. Then we drive test the area and bring in data, feed the data in and then it applies correction to that prediction. And . . . what we get as a result is . . . the depiction of coverage, which is fairly accurate.

Plaintiff's planning expert, James Dowling, testified that the proposed site was particularly suited for the proposed use based on a number of factors. In particular, the Edison Township Master Plan designates the area for utility uses, a use analogous to wireless communications equipment. In addition, Route 1 is a major mixed-use commercial thoroughfare containing other towers and a gas pipeline, and plaintiff's proposal to construct the equipment shelter and attach the antennas would "be in character with" that setting. Moreover, plaintiff's proposal does not require the construction of a new tower. The site would not create any extra traffic, nor would it require a sewer or water connection. With regard to the Board's concerns that the proposed equipment compound would obstruct motorist visibility, Dowling provided the Board with a photo simulation of what the equipment compound would look like from Grandview Avenue and Route 1 north. Dowling opined "this facility is [set back] sufficiently and does not block any critical views." Dowling also stated that the equipment compound would be located about eighty to ninety feet from the intersection of Route 1 north and Grandview Avenue.

As for aesthetic impact, Dowling provided photo simulations showing the views of the tower from local residential areas with and without the plaintiff's antennas attached, and he noted "there really is not a significant visual change." Dowling also confirmed that plaintiff was willing to remove the fence surrounding the compound and add a gabled roof to the shelter or change its fa ade if the Board felt the changes would improve the appearance of the site. Dowling testified that the benefits of granting the variances outweighed the negatives and recommended that the Board "act favorably" on plaintiff's application.

After hearing from plaintiff's three expert witnesses, the Board opened the meeting to comments from "anyone within 200 feet of this application who would like to make some comments." James Kukor, of 78 Grandview Avenue, was the only other witness to testify regarding plaintiff's application. Kukor expressed concerns regarding potential changes to the intersection which may include the widening of Route 1 by the NJDOT. Kukor also expressed his concern that the 100-watt light that plaintiff proposed installing above the door to the equipment shelter might impact his property, and he asked whether any of the other towers in the area were viable options for filling plaintiff's coverage gap. Mughal responded that none of the other towers, alone, could eliminate plaintiff's gap. Kukor also told the Board, "statistics furnished by the State" show that "Grandview Avenue is the seventh worst intersection in the State of New Jersey."

At its meeting on May 18, 2004, the Board voted unanimously to deny plaintiff's application, and the Board memorialized its denial of plaintiff's variance application in a resolution dated June 29, 2004. The Board found that Hay's testimony, that there would be no sight distance/traffic safety problem, was not credible "in light of the [Board's] knowledge of this particular intersection." The Board also noted in its findings that Hay did not provide any empirical data to support his position that the two towers nearest to the site proposed by plaintiff were structurally inadequate to support plaintiff's equipment. The Board further found that Mughal, plaintiff's radio frequency engineer, failed to produce empirical data to support his conclusion that the nearest PSE&G tower to the north "could not equally fill Applicant's gap in coverage," and plaintiff failed to show that it made an attempt to examine the viability of the tower located near the Menlo Park Mall. Furthermore, the Board discounted Dowling's conclusion that the site location is particularly suited for the proposed use noting that "Mr. Dowling is not a traffic expert." The Board noted that the next to last paragraph of Hay's letter of April 8, 2004, to the NJDOT, which discussed the "impact of the proposed Nextel equipment shelter on sight distance" "is relevant to the Board's ultimate conclusion." Finally, the Board rejected Hay's conclusion that "the line of sight of the driver towards (sic) the traffic light will not be impacted by the height of the proposed equipment shelter" because the Board found that conclusion "unsupported by the record."

The Board's resolution contained the following conclusions:

1. The Board concludes that this is a use variance application and that the Applicant has not demonstrated that the site is particularly suited for the intended use by reason of its location at one of the busiest and most dangerous intersections in the State of New Jersey.

2. The Board concludes that the addition of the antennas and cabinets on the Property will aggravate the already existing negative impact of the electric transmission towers upon the adjacent residential zone.

3. The Board concludes that there are additional PSE&G towers of similar construction and height, on a continuing line, at space intervals of .3 of a mile from the subject Property which could provide substantially similar coverage while being less intrusive. In fact, the Board finds and concludes that the PSE&G tower only .3 of a mile to the north of the subject Property near the Menlo Park Mall would be a less intrusive site than the subject Property, would not create any sight distance issues, and could fill the Applicant's gap in coverage. The Applicant's Radio Frequency expert could not refute such position.

4. The Board finds and concludes that the Applicant's own engineer, Mr. Hay, recognizes the problems associated with the subject Property relative to safe sight distance issues when he concluded in his April 8, 2004 letter that "traffic flow heading north on Route 1 could cause collision (sic) at the intersection of Route 1 north and Grandview Avenue west."

5. The Board finds and concludes that no testimony was provided by the Applicant's Radio Frequency expert or engineering expert that the PSE&G tower .3 of a mile to the north could not support the antennas proposed by the Applicant from a total load perspective o[r] from a coverage perspective. The Board finds such unresponsiveness fatal to this application.

6. The Board finds and concludes that the subject Property is adjacent to one of the most dangerous and heavily trafficked intersections in the State of New Jersey. The placement of a fully screened compound could only act to further exacerbate an already dangerous condition vis- -vis safe sight distances. This is particularly so in light of the proposed widening of Route 1. This problem may be compounded if other carriers desire to co-locate on this PSE&G tower.

7. Due to its central and focal location (this site is at one of the entrances to Roosevelt Park, a County park), any compound on the subject Property would be an attractive nuisance for youngsters to cover the compound with graffiti.

8. In conclusion, the Board finds that the subject Property does not constitute the least intrusive location to fill the Applicant's gap in coverage. To the contrary, the Board finds and concludes that no effort was made by the Applicant to demonstrate that the PSE&G tower .3 of a mile to the north could not accommodate the Applicant's gap in coverage.

NOW, THEREFORE, BE IT RESOLVED, by the Zoning Board of Adjustment of the Township of Edison this 29th day of June, 2004 that the Board hereby confirms by this Resolution the action taken by the Board on May 18, 2004 denying the Applicant's request for use, height and bulk variances along with preliminary and final site plan approval.

As a result of the Board's denial, plaintiff filed a complaint in lieu of prerogative writs alleging that the denial was arbitrary, capricious, unreasonable, and "otherwise without basis in law or fact"; violated the Municipal Land Use Law (MLUL); and violated the federal Telecommunications Act of 1996 (TCA), because the denial was not supported by substantial evidence as required by the TCA.

We have previously held that "[a] municipal zoning board is entrusted with the sound discretion to determine whether an applicant has met the statutory criteria to obtain a variance." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 37-38 (App. Div. 2003); see also Kaufmann v. Plan. Bd., Twp. of Warren, 110 N.J. 551, 558 (1988); Northeast Towers, Inc. v. Zoning Bd. of Adjustment of Borough of W. Paterson, 327 N.J. Super. 476, 493 (App. Div. 2000). In reviewing such a decision, the court's role is limited. See Kaufmann, supra, 110 N.J. at 558. That is, to determine "whether the board's decision was reasonably supported by the record." Nextel of N.Y., supra, 361 N.J. Super. at 38. A decision by a board of adjustment is "presumed to be valid, and the party attacking it has the burden of proving otherwise." Ibid. A board's decision "will not be set aside by a court unless it is arbitrary, capricious, and unreasonable." Ibid. "[G]reater deference is accorded to denial of a variance than to a grant." Northeast Towers, supra, 327 N.J. Super. at 494.

To obtain a use variance, plaintiff was required to prove both the positive and negative criteria contained in N.J.S.A. 40:55D-70(d). New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999). "With telecommunications facilities, we will weigh . . . the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Id. at 15 (internal quotations omitted).

"The positive criteria test is whether a proposed use promotes the general welfare and is particularly suited for the site. With telecommunications towers, the issuance of an FCC license generally establishes that the use promotes the general welfare." Id. at 14. Because Nextel's FCC license satisfies that requirement, this appeal centers on the suitability of the site and the satisfaction of the negative criteria.

"To demonstrate that a site is particularly suited for a telecommunications facility, the applicant initially must show the need for the facility at that location." New Brunswick Cellular, supra, 160 N.J. at 14. In other cases, we have found particular suitability when:

1) the site is zoned for industrial use; 2) the site is centrally located in the carrier's search area; 3) the site already accommodates a monopole; 4) competent expert testimony establishes that existing capacity is inadequate; 5) propagation maps demonstrate an inadequacy of signal strength; 6) the site redresses a carrier's lack of capacity; or 7) viable alternate sites are not available.

[N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004).]

As to the possibility of other suitable sites for an applicant's antennas and associated equipment, this court has stated:

Zoning Boards do not have carte blanche to reject an application based on conjecture that a possible alternative site is both suitable and available. [Ocean County Cellular v. Twp. of Lakewood Bd. of Adjustment,] 352 N.J. Super. 514, 529 (App. Div.), certif. denied, 175 N.J. 75 (2002). Requiring providers to disprove the suitability of every possible alternate site is a daunting task because of the uncertainty surrounding the availability and ultimate suitability of such sites. Ibid. Moreover, an alternate site may require the provider to file a variance application, the approval of which is far from certain. Ibid.

[N.Y. SMSA, Ltd. v. Twp. of Mendham Zoning Bd. of Adjustment, 366 N.J. Super. 141, 163 (App. Div.), aff'd o.b., 181 N.J. 387 (2004).]

The facts in this case demonstrate that the site proposed by Nextel "is in the center of the area which is in need of service." See Nynex Mobile Commc'ns v. Hazlet Twp. Zoning Bd. of Adjustment, 276 N.J. Super. 598, 601 (App. Div. 1994); see also Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 379 (App. Div. 2003) (finding in favor of wireless telecommunications provider where the testimony of Sprint's radio frequency expert "concentrated on the subject location which was located in the center of the gap, and provides the needed coverage"). Plaintiff presented competent, credible testimony establishing that other towers in the area would not fill its coverage gap, or, if another tower did fill the gap, it only did so partially, which would require either construction of a new tower to fill the gap or attachment of new antennas to another existing tower. In addition, the particular suitability of this site was demonstrated by the fact that plaintiff was proposing to place its four-foot high antennas on an existing power line tower. See Smart, supra, 152 N.J. at 333. Indeed, it is undisputed that the proposal called for attaching the antennas below the top of the PSE&G tower so that the overall height of the ETT would not be increased. As a result, it was convincingly demonstrated that the subject site was particularly suited for the use.

We are also persuaded that Nextel satisfied the negative criteria. That may be accomplished when the applicant demonstrates "the use will not substantially impair the purpose and intent of the zoning ordinance, or constitute a substantial detriment to the public good." New Brunswick Cellular, supra, 160 N.J. at 15.

James Dowling, plaintiff's planner, testified that the proposed use would not substantially impair the purpose or intent of the zoning ordinance, nor would it constitute a substantial detriment to the public good. There was no credible evidence to the contrary, and there was no evidence that plaintiff's proposal, if granted, would create an unsafe condition, increase traffic, or that it would emit any noise, odor, smoke discharge, or other waste. The proposed facility would not require a sewer or water connection, or burden the local police or fire departments. There is no proof of harm to adjacent residential properties, or negative aesthetic impact on this area. There is also no evidence that the facility will unsafely impair the visibility of motorists traveling on the adjacent highway and roads.

If granted, plaintiff's proposal will also benefit the public. As Mughal, plaintiff's radio frequency engineer testified, if motorists traveling within the gap, on Route 1, are involved in an accident or have some other emergency, they would likely have difficulty communicating with others through their Nextel cell phones. One of the purposes behind enactment of the Telecommunications Act of 1996 was to bring the benefits of wireless communications devices to more Americans. The Third Circuit Court of Appeals has discussed the significance of a gap in coverage along a major commuter highway, such as Route 1:

We think it matters a great deal, however, whether the "gap" in service merely covers a small residential cul-de-sac or whether it straddles a significant commuter highway or commuter railway. Unlike a utility such as electrical power, cellular service is used in transit, so a gap that covers a well-traveled road could affect large numbers of travelers--and the people who are trying to communicate with them. Over the course of a year, the total disruption caused could be quite significant.

[Cellular Tel. Co., supra, 197 F.3d at 70 n.2.]

Because the Board's decision to deny plaintiff's variance application is not supported by the record, it was arbitrary and capricious. Under both State and federal law, when a Board denies a variance to a wireless service provider, there must be substantial evidence in the record supporting its decision. Conjecture, speculation, and unsubstantiated concerns do not provide a firm foundation for a Board's denial. See Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor, 172 N.J. 75, 88 (2002) ("Prudence dictates that zoning Boards root their findings in substantiated proofs rather than unsupported allegations.").

The Board's resolution lists a number of reasons for denying the variances. The Board claims the addition of the antennae and equipment shelter will "aggravate the already existing negative impact of the electric transmission towers upon the adjacent residential zone," but there is no support in the record to sustain this concern. There are already a total of three ETTs in the area, most of the lots within 200 feet of the proposed facility are being used for commercial purposes, and the proposed facility would be constructed on a jughandle island that is located on a heavily-traveled major highway where the posted speed limit is 50 miles per hour. Each antenna is only four feet long, one foot in width, and seven inches in depth. The antennas would be mounted at a height of 139 feet on the existing 152-foot tower. Plaintiff's planner testified that the area where the facility would be located is a mixed-use commercial area and the subject property is currently used for utility purposes. The Board did not present any expert testimony or any other proof to show a "negative impact" on the adjacent residential area.

The Board also claims that there was a "less intrusive site than the subject [p]roperty" available that would fill plaintiff's coverage gap. Once again, there is no support for this in the record. Plaintiff's radio frequency engineer testified that the proposed site was "optimal" and "a perfect fit" that would remedy plaintiff's coverage gap. Mughal also adequately explained that utilizing another existing tower in the area, alone, would not eliminate plaintiff's gap, but would require either constructing another tower or appending antennas to more than one existing structure. The Board did not present any evidence to refute Mughal's testimony. The evidence does not support the conclusion that there was a suitable, less-intrusive site available.

The Board's concern, that the proposed equipment shelter would impair motorist visibility at the intersection of Grandview Avenue and Route 1, is also unsubstantiated by the record. The Board's resolution quotes plaintiff's engineer, Todd Hay, out of context, as support for its conclusion that motorist visibility will be impaired. Plaintiff's own planner, Sheehan, at the Board hearing held on March 30, 2004, suggested that sight plans containing sight triangles be drawn. Hay agreed to have his firm draw the plans and to do so according to DOT Design Manual specifications. The Board never objected to Hay doing so, but later rejected his findings. After reviewing Hay's sight plans, neither Sheehan, nor NJDOT engineer Rick Thayer, had any objection to the variance application on grounds that the proposed equipment shelter would impair motorist visibility at the adjacent intersections. While the Board is free to reject Hay's opinion with an accompanying explanation, it may not reject the NJDOT engineer's opinion and the opinion of its own consultant without explanation. Cellular Tel. Co. v. Bd. of Adjustment of Paramus, 37 F. Supp. 2d 638, 645 (D.N.J.), aff'd o.b., 191 F.3d 444 (3d Cir. 1999). Finally, the Board's graffiti/attractive nuisance concerns are also unsupported in the record. Plaintiff proposes to fence and screen the facility from view. The eight-foot fence will be equipped with an alarm system and motion sensors, which will be remotely monitored. Accordingly, the competent, credible evidence in the record does not support the Board's concerns.

The final judgment entered by the trial court on April 5, 2005, affirming the Board's decision to deny plaintiff's application for a use variance, height variance, lot coverage variance, minimum front yard set-back variance, and a minimum gross floor area variance is reversed. The trial court shall enter a judgment granting all such variances. Because of the Board's decision to deny plaintiff's variance application, the Board did not review plaintiff's application for preliminary and final site approval. We therefore remand this aspect of plaintiff's application to the Board for a determination.

 
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

The R-B Residential Zoning District permits the following uses: single-family detached house; church, synagogue, or other place of worship; private nonprofit school; private golf courses; and planned unit development. Edison Township, N.J. Ordinances 17.28.010.

Although the Board's planner stated that the antennas would be installed at a height of 140', the variance application and amended variance application submitted by plaintiff state that the antennas will be installed at a height of 139'. Accordingly, we will use the height indicated in the variance applications.

According to plaintiff's engineering expert, Todd Hay, perma-hedge screening is "material typical of slats, vinyl slats, but it is a grass material so it actually will blend in with the grass island that's there now."

(continued)

(continued)

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A-4851-04T5

 

September 27, 2006