OMNIPOINT COMMUNICATIONS, INC v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF RUTHERFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0202-09T2

OMNIPOINT COMMUNICATIONS, INC.,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT OF

THE BOROUGH OF RUTHERFORD,

Defendant-Appellant,

and

BOROUGH OF RUTHERFORD,

Defendant.

______________________________________________

December 10, 2010

Submitted September 20, 2010 Decided

Before Judges Rodr guez, Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8677-08.

Stryker, Tams & Dill, attorneys for appellant (Donovan Bezer and Gary J. Cucchiara, on the brief).

Price, Meese, Shulman & D'Arminio, attorneys for respondent (Gregory D. Meese and Constantine Stamos, on the brief).

PER CURIAM

The Zoning Board of Adjustment of the Borough of Rutherford (Board) appeals from the July 27, 2009 Law Division judgment, rejecting its decision and granting variances and site plan approval to Omnipoint Communications, Inc. (Omnipoint). We affirm substantially for the reasons expressed by Judge Menelaos W. Toskos in his July 27, 2009 written decision.

Omnipoint is licensed by the Federal Communications Commission (FCC) to provide digital mobile telephone services in the New York area. Omnipoint identified a coverage gap in the Borough of Rutherford. After analyzing suitable sites to place antennas or towers, Omnipoint negotiated a lease to erect eight rooftop wireless antennas on a four story residential apartment building located in the single family residential zoning district, R-1. The plan called for disguising the antennas as false or "faux" chimneys.

Rutherford Zoning Code, Article IV, 131-7A, Table of General Bulk Regulations (Zoning Code), establishes that the maximum building height in the R-1 zone is thirty-five feet or two-and-one-half stories. The proposed building is a non-conforming use because it is four stories and its height is thirty-nine feet, eleven inches tall. The proposed antennas would rise nearly ten feet above the roof to a height of forty-nine feet, ten inches. Therefore, use variances were necessary because wireless telecommunications facilities are not permitted in the R-1 zone; and the proposed antennas would exceed the height limits.

Omnipoint applied to the Board for use variances and site plan approval to construct eight antennas with faux chimney structure. The Board conducted public hearings on March 19, July 8 and September 9, 2008. Omnipoint presented the testimony of five witnesses. Syed Mujdaba, a radio frequency engineer, testified that a telecommunications facility was necessary because there was a "significant gap in coverage." This testimony was corroborated by the introduction of a propagation map, which reflected that areas of Rutherford had insufficient coverage. Mujdaba opined that erecting antennas on the building would prevent "dropped calls" in the area because the building "is close to the central location of the coverage gap." Further, this building was selected due to its higher elevation, which was evidenced by the topographic map.

Regarding alternate locations, Mujdaba testified that Rutherford's commercial zone, B-3, did not contain a suitable location because of its lower elevation. If Omnipoint chose a site in the B-3 zone, it would have to construct a new tower or monopole, with a minimum height of eighty-five to ninety feet.

According to John Colagrande, Omnipoint's expert in civil engineering, the antennas would be encased by eight faux chimneys, which would be two-feet-by-two-feet. These chimneys would be eight inches shorter than the three existing true chimneys on the building. Moreover, the chimneys would "mimic the existing brick facade of the building to make them look as natural as they can to the structure."

Timothy M. Kronk, Omnipoint s expert planner, testified that the faux chimneys would prevent the eight antennas from being visible to the public. Kronk also engaged in the balancing test for the positive and negative criteria set forth in Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 165-67 (1992). He opined that the positive aspects of the proposed use outweighed any visual detrimental impact. The building was particularly suited due to its height, location and elevation. Further, there were not "a lot of options in the area to eliminate the coverage deficiency," as other buildings would require building new towers or monopoles.

Regarding the negative criteria, Kronk opined that the wireless telecommunications use was a "benign commercial use" that possessed none of the traditional negative impacts associated with land development. Specifically, the use would not create noise, glare, odor, vibration or other "noxious characteristics" or require workers on the site. However, Kronk conceded that the use would have a negative visual impact, albeit "de minimis in nature." Thus, the Board could grant the variances without a substantial detriment to the public good.

Daniel J. Collins, an expert in radio frequency emissions and FCC compliance, testified that the proposed antennas would comply with FCC safety standards. Finally, Bob Leavell, Omnipoint's expert in radio frequency engineering, explained that eight antennas were necessary because the technology required two antennas at each corner. He explained that if one antenna did not receive a strong signal the other one would.

The Board presented no expert testimony, but did ask several questions under oath of Borough Construction Official John Uhl. Eleven members of the public expressed concerns regarding the visual impact of the false chimney structures.

The Board denied the application, and later adopted a resolution stating its conclusions, specifically:

[Omnipoint] has not demonstrated
"special reasons" for approval of its use variance application.

. . . [T]he Master Plan clearly requires that residential zones and neighborhoods be maintained and that there should be no intrusion into these districts by nonresidential uses . . . .

[Omnipoint] has failed to establish the positive criteria necessary for approval of the application. [Omnipoint] indicated that there was a gap in coverage, and that the installation of the proposed antennas would close that gap. However, insufficient evidence was presented to show that the existing service was inadequate, or that the public would benefit from enhancing that service. In addition, [Omnipoint] did not present any evidence to indicate whether the coverage area is being serviced by another wireless provider, and that therefore, there is a compelling public interest for [Omnipoint] to provide cellular telephone service in the coverage area . . . .

. . . [Omnipoint] has not demonstrated that the [s]ite is the only reasonable location for the facility. The evidence indicated that [Omnipoint] has not made a reasonable and good faith effort to install the facility at alternate commercial locations which would be less intrusive then the proposed Site in a residential zone . . . .

. . . [Omnipoint did] not satisfy the negative criteria required for the approval of a use variance. The Borough's Master Plan not only encourages maintenance of permitted uses in residential zones, but encourages traditional neighborhood elements such as sidewalks, alleys, front porches, public spaces, green spaces and street trees. . . . Obviously, the proposed antennas do not represent a traditional neighborhood element. [The antennas] would be clearly visible from the exterior of the [b]uilding, and would extend approximately seven (7) feet higher than [its] parapet . . . . [I]nstallation of the obvious fake [chimney] material would be unsightly, and the detrimental visual impact of the antennas, even with such concealment, would be substantial . . . .

. . . [Omnipoint] has failed to demonstrate that the application would not impair the intent and purpose of the zone plan and zoning ordinance.

Omnipoint filed an action in lieu of prerogative writs. At the conclusion of the trial in the Law Division, Judge Toskos concluded that the Board's findings "fly in the face of the evidence produced at the hearing." After reviewing the governing authorities, the judge focused on the evidence presented by Omnipoint's five witnesses. He found that

[t]he record does not contain any facts that [Omnipoint] failed to satisfy the positive criteria. Nor does the record proffer any legitimate alternative sites. Nor is there any evidence that alternative sites were ignored by [Omnipoint].

We conclude that the judge's findings are supported by the proofs. N.Y. SMSA, L.P. v. Bd. of Adjustment of Bernards, 324 N.J. Super. 149, 164 (App. Div.), certif. denied, 162 N.J. 488 (1999). We also agree with his analysis and conclusions.

On appeal, the Board contends that (a) it "correctly exercised its discretion to deny Omnipoint's request for a use variance"; (b) "[a] Board can deny a land use proposal for unsightliness" (not argued in the Law Division); (c) "[a] trial court cannot supplant its judgment for that of the Board"; and (d) "the Board's denial of the variance application does not violate the Federal Telecommunications Act (FTA)," 47 U.S.C.A. 151 (not argued in the Law Division).

We are mindful that, due to the strong legislative policy favoring land use planning by ordinance rather than by variance, the grant of a "d" variance will be considered the exception rather than the rule. See Cerdel Constr. Co. v. Twp. Comm. of E. Hanover, 86 N.J. 303, 307 (1981). Our review of a zoning board's decision is limited. Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002). We apply the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Thus, the determinations of a zoning board are presumed valid and will be reversed only when the findings are "so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ocean Cnty. Cellular, supra, 352 N.J. Super. at 522. However, the TCA requires that a board's findings must be supported by "substantial evidence in the record." Bernards, supra, 324 N.J. Super. at 165.

It is well-settled that in order to obtain a variance pursuant to N.J.S.A. 40:55D-70d, an applicant must demonstrate both the positive and negative criteria. The positive criteria require the party to prove the "special reasons" for granting the variance. Sica, supra, 127 N.J. at 156. If the proposed use is "inherently beneficial," the positive criteria are presumptively met. See Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 328 (1998). The presumption is based on the concept that inherently beneficial uses serve the general welfare. See Medici v. BPR Co., 107 N.J. 1, 12-13 (1987).

The Supreme Court has declined to recognize that telecommunications facilities constitute inherently beneficial uses. Smart, supra, 152 N.J. at 331. However, in Smart, the Court noted that it might have reached a different result if the issue before it involved appending antennas on an existing structure instead of constructing monopoles or towers. Ibid. The Court also recognized that an FCC license generally establishes that the use promotes the general welfare. Id. at 336. Nonetheless, an applicant must establish that the proposed telecommunications use is particularly suited for the proposed site. New Brunswick Cellular Tel. Co. v. Borough of Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999).

In applications for variances and/or site plan approval concerning telecommunications facilities, we have held that the positive criteria are satisfied where the carrier is licensed by the FCC and proffers credible testimony establishing that a coverage gap exists. See Weehawken, supra, 370 N.J. Super. at 340. In determining whether the positive criteria were satisfied, courts have taken into consideration a variety of factors, including: the zoning district; whether the site is centrally located; whether the site already accommodates a monopole; whether competent expert testimony establishes that the existing capacity is inadequate; whether propagation maps demonstrate an inadequacy of signal strength; whether the site redresses a carrier's lack of capacity; and whether there are viable alternative sites. Id. at 121-22. In considering expert testimony in favor of the application, it is important to note whether there is any competing evidence by an interested party or the board to counter the applicant's expert testimony. See Ocean Cnty. Cellular, supra, 352 N.J. Super. at 526.

To determine whether the negative criteria outweigh the positive criteria our courts have applied the balancing test set forth in Sica, supra, 127 N.J. at 165-67, which requires the following:

First the [zoning] board should identify the public interest at stake. Some uses are more compelling than others. . . . Second, the Board should identify the detrimental effect that will ensue from the grant of the variance. . . . Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. If so, the weight accorded [to] the adverse effect should be reduced by the anticipated effect of those restrictions. . . . Fourth, the Board should then weigh the positive criteria and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.

We have applied the Sica balancing test in residential districts and concluded that minimal visual impact would not constitute a substantial detriment. Ocean Cnty. Cellular, supra, 352 N.J. Super. at 533-34.

The Zoning Code regulates the development of telecommunications facilities. It lists as among its goals and purposes to minimize the number of telecommunications towers; to encourage the use of existing structures; and to minimize the visual impact of towers and antennas. Zoning Code 131-52.1, (3),(5) and (7).

The Zoning Code permits antennas to be attached to existing structures, other than municipally owned properties, as a conditional use if not located within a residential zone. The ordinance also expresses a preference for utilizing existing structures instead of constructing new towers, and provides in part:

No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Planning Board that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's proposed antenna.

[ 131-52.6(c).]

Here, applying the appropriate standard of review, we affirm the finding by Judge Toskos: that the Board's finding that Omnipoint failed to satisfy the positive criteria was "a conclusion that is clearly arbitrary, capricious and unreasonable." First, Omnipoint is licensed by the FCC and, as the judge noted, "it is presumed that the proposed use serves the general public . . . ." See Smart, supra, 152 N.J. at 336. Second, Mujdaba's opinion tended to prove that there was a coverage gap, which included the R-1 district. The Board presented no expert testimony to rebut Mujdaba's opinion. However, the Board found that no gap in coverage was adequately established. Thus, the Board's finding was not based on the evidence, and was therefore arbitrary. See Weehawken, supra, 370 N.J. Super. at 340.

Third, the Board's finding that the building was not particularly suited is also not supported by the record. Both Mujdaba and Kronk testified that the building was centrally located in the coverage gap and was particularly suited because it was located on a higher elevation. According to these experts, the commercial zone, B-3, did not contain any sites that were suitable locations because it was in a lower elevation. As Judge Toskos explained, "a coverage deficiency existed in this portion of Rutherford; and . . . the height of the existing structure eliminates the need to construct a new support structure or tower for the antennas." Further, "the Borough's Ordinance encourages the use of existing structures."

Here, the Board rejected Omnipoint's application based on its conclusion that the number of faux chimneys and the proposed antennas would "not fit into the neighborhood." With respect to the Board's finding that antennas cannot be placed in purely residential zones, we have recognized that

it is not the classification of the zone itself that is the critical consideration, because with every N.J.S.A. 40:55D-70d application the use is not permitted in the zone. Rather, the question a zoning board must address is what adverse effects granting the variance will have on the zone and master plan.

[Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 393 (App. Div. 2003).]

The Board also contends that its visual observations should be entitled to deference; aesthetics alone can establish a negative impact justifying the denial of a variance; and its findings complied with the TCA requirement that decisions to deny telecommunications applications be supported by substantial evidence. We are not persuaded.

Although a negative visual impact may be considered by a board in reviewing a telecommunications application, the board must balance any detriment against the positive criteria and determine whether the use would constitute a substantial detriment to neighborhood and zoning plan. See Smart, supra, 152 N.J. at 324. Here, however, the Board did not consider the positive criteria of Omnipoint's application. Judge Toskos found that "[t]here is no adequate proof that [Omnipoint's] equipment would be substantially detrimental to the adjoining properties or the public good." Indeed, "the photo simulations demonstrate[d] that the stealth chimneys will have only minimal impact on the aesthetics." Thus, the judge properly found that the Board's determination "that the application did not satisfy the negative criteria is completely unsubstantiated by credible evidence." Instead, the Board judged that the installation would create a minimal visual impact and accorded great weight to it.

Moreover, the Board disregarded the undisputed evidence establishing that Omnipoint's use would serve the public interest by filling an identified gap in coverage and would "further the congressional goal of competition among providers of commercial mobile services." Smart, supra, 152 N.J. at 332-333.

A