NEW YORK SMSA LIMITED PARTNERSHIP v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF TENAFLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1152-08T21152-08T2

NEW YORK SMSA LIMITED

PARTNERSHIP, D/B/A VERIZON

WIRELESS,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT

OF THE BOROUGH OF TENAFLY,

Defendant,

and

WONHO and OKSOON CHONG, GEORGE

and EWA PRUSSIN, TULIN and

ARISAN ERGIN, AVRAHAM and LIORA

GILOR, ELLEN SHELDON, and DAVID

SIMSON,

Defendants/Intervenors-Appellants.

_______________________________________________________

 

Argued October 14, 2009 - Decided

 
Motion for reconsideration granted.

Resubmitted June 23, 2010 - Decided

Before Judges Skillman, Fuentes and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No.

L-9249-07.

Stuart J. Lieberman argued the cause for appellants (Lieberman & Blecher, attorneys; Mr. Lieberman, on the brief).

Richard D. Stanzione argued the cause for respondent (Hiering, Dupignac, Stanzione, Dunn & Beck, attorneys; Mr. Stanzione, on the brief).

PER CURIAM

On May 24, 2010, we issued our decision in this appeal, which reversed a judgment of the Law Division reversing a resolution of the Tenafly Zoning Board of Adjustment (Board) that denied an application by plaintiff New York SMSA Limited Partnership d/b/a Verizon Wireless (Verizon) for a use variance and other land use approvals required to construct a cell tower on property owned by St. John's Greek Orthodox Church located in a residential zone. N.Y. SMSA Ltd. P'ship. v. Zoning Bd. of Adjustment of Tenafly, No. A-1152-08T2.

Verizon filed a motion for reconsideration, which argued that our decision was based on various legal and factual errors. We asked appellants to submit a response to the motion. Upon further review, we determined that reconsideration was required. We now conclude that our prior opinion contained legal and factual errors that require the opinion to be vacated and the case remanded to the Board.

Our opinion stated, quoting New Brunswick Cellular Telephone Company v. Borough of South Plainfield Board of Adjustment, 160 N.J. 1, 6 (1999), that "[t]o satisfy the negative criteria, 'in addition to proving that the variance can be granted without substantial detriment to the public good, an applicant must demonstrate through an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'" N.Y. SMSA, Ltd. P'ship., supra (slip op. at 10). We agree with Verizon that this was an incorrect statement of the applicable law. Although this test governs other applications for use variances, except those involving inherently beneficial uses, see Medici v. BPR Co., 107 N.J. 1, 21-23 (1987), it does not govern use variances for telecommunications facilities such as cell towers. Instead, in determining whether an applicant for a use variance for a telecommunications facility has satisfied the negative criteria for a use variance, a board must "weigh, as [it] would with an inherently beneficial use, 'the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.'" New Brunswick Cellular Tel., supra, 160 N.J. at 15 (quoting Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 332 (1998)).

Although we erred as to the law applicable to satisfaction of the negative criteria for the grant of a use variance for a cell tower, this by itself would not warrant relief because our decision was based solely upon Verizon's failure to satisfy the positive criteria for the grant of a use variance. See N.Y. SMSA, Ltd. P'ship., supra (slip op. at 3, 12-14). However, our opinion contains other errors.

First, in discussing the positive criteria for the grant of a use variance for a cell tower, we stated, citing New York SMSA, Ltd. v. Township of Mendham Zoning Board of Adjustment, 366 N.J. Super. 141, 149-50 (App. Div.), aff'd o.b., 181 N.J. 387 (2004), that an "applicant [must] show that the proposed facility will fill the gap in the least intrusive manner, and that the applicant made a good faith effort to investigate alternative technologies and alternate sites." N.Y. SMSA, Ltd. P'ship., supra (slip op. at 12). We agree with Verizon that this was an incorrect statement of the applicable law. Mendham did not involve the positive criteria for the grant of a use variance. Instead, Mendham involved a claim under the Federal Telecommunications Act, 47 U.S.C.A. 332(c)(7)(B)(i)(II). See 366 N.J. Super. at 158-62. Verizon does not rely upon the Federal Telecommunications Act in this action challenging denial of its application for a use variance for a cell tower. Therefore, we erred in applying the test set forth in Mendham in determining whether Verizon had satisfied the positive criteria for the grant of a use variance.

The correct test for determining whether an applicant for a use variance to construct a cell tower has satisfied the positive criteria for a use variance is the one set forth in Smart SMR, supra, 152 N.J. at 332, -- that "the use is particularly suited for the proposed site." We have previously indicated that this test may be satisfied without necessarily showing that a proposed site for a telecommunications facility would be the "least intrusive" site. In Ocean County Cellular Telephone Company v. Township of Lakewood Board of Adjustment, 352 N.J. Super. 514, 529 (App. Div.), certif. denied, 175 N.J. 75 (2002), we observed that "[t]o require the applicant to disprove the 'possible existence' of [less intrusive alternative] sites may be a daunting, if not impossible task because of the uncertainty as to the availability of such sites, as well as the physical variables that may render them unsuitable." However, "a provider's reasonable and good faith effort to find an alternative, less-intrusive site is clearly relevant to the 'particularly suited' analysis." Id. at 528; see also Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 390-91 (App. Div. 2003).

Second, there are factual errors in our prior opinion, to which we now turn. Verizon argues that we erred in concluding that the opinion of Verizon's expert regarding the unavailability of alternative sites was an "impermissible net opinion." N.Y. SMSA, Ltd. P'ship., supra (slip op. at 13). We have reviewed the specific parts of the transcript of the hearing before the Board that Verizon relies upon in support of this argument. Based on this review, we agree that the testimony of Verizon's expert, David Stern, a radio communications wireless systems design engineer, that other nearby rooftop antennas on existing structures and other telecommunications facilities in the area are not suitable as alternative sites that could fill the coverage gap, was not simply an impermissible net opinion. We quote selected portions of that testimony:

The area that we're trying to serve with this particular site is a unique

area. . . . [T]here's a ridge line on the east part of Tenafly just west of Sylvan Avenue and the Palisades Interstate Parkway. This ridge line is a unique feature for the area. . . .

For us, the radio frequency engineers, it presents a lot of very unique challenges of trying to serve this area and not to have any impact on the rest of our network, and try to serve this area well.

[H]istorically the best way we found to serve a ridge line like this is to have sites on the ridge line with very focused antennas up and down the ridge line. The difference in height and elevation between the top of the ridge line and where we're sitting . . . today is about 350 feet.

. . . .

Now, if I put my antennas on top of this ridge line and try to serve the whole area, what I've done now is interfered with 30 other cell sites. I've interfered with all the cell sites in Washington Heights and in Yonkers. And I've been interfering with all the cell sites going west through Bergen County all the way out to Passaic County.

So, . . . sites in Bergenfield, and in Teaneck, and in Hackensack are all getting interfered with. Now, why is that important, what is the cause?

As I talked a little while ago, we have a digital technology. That digital technology is known as Code Division Multiple Access. CDMA. You heard commercial or two. CDMA network that works by us. Instead of using [a] log voice everybody got their own frequency.

With the AT&T technology or the T-Mobile technology called GSM, they use TDMA, Time Division Multiple Access. And what they do is [they] cut apart the channel at the various forms of time and very quickly they assign each person a slot of time, on a radio channel, you're first, you're first, next, next, next. And they keep going through that so fast that you don't know that that seven-eighths of the time you're not on a channel, you're not even transmitting.

So with the CDMA technology I assigned everybody a code and everybody transmits on the same channel. So, you've got this very large data screen coming out of the transmitter and the receiver is looking for the code, your specific code. So, you're on the same channel with 40, 50, 60 other users and all you're looking for is a 100-bit long string so there's my code. And at the

end of that code is some bits that are associated with the voice packet. And that's what I'm constantly doing is looking for those bits.

Why is that important? I'm sharing the same radio channel everywhere. So as I increase the power on one site, all the other cell sites begin to suffer because the bits get scrambled. And what's happened then is that each cell site, if you're trying to hear your mobile phone and your mobile phone is trying to get a cell site, everybody powers up their devices until they reach the maximum power, and then they run out of power to overcome the noise.

. . . .

So, to try to serve this ridge line, we try to serve it the best way we can by putting sites on the ridge line and locating sites on the ridge line and then focusing the radio frequency energy on the ridge line.

. . . .

One of the things that happens in CDMA, is that the phone will try to block on its best signal. Well, when you don't have a strong signal it will try to pick whatever signal is out there. . . .

. . . If you don't have a domina[nt] server, I'm seeing 20 Bergen County sites and 20 sites from Yonkers and Washington Heights all trying to serve me. It doesn't work. The phone drops calls. The phone gets lost. The calls get lost. It doesn't work up here. The only way to fix it is to put a domina[nt] server on top of the ridge and I fill in this gap. I can't fill it in from down. I've been trying to do it for years and it just doesn't work.

. . . .

Q. Now, in seeking to locate this site, did you do a search for any existing structures that might serve the need rather than the structure of the new monopole?

A. Yes, we did.

Q. What, if anything, did you find?

A. We found no existing structures that would fill this gap in service.

Q. Basically, did you look outside the specific area of the Greek Orthodox Church?

A. We looked at other pieces of property to find out if other pieces of property -- we looked at taking advantage of anything -- you know, we did the analysis. We looked at, could we actually cover from someplace else? Could we cover from down low?

Basically you're looking at a 300-foot tower in downtown Tenafly to cover back up on top of the ridge, which is . . . not a wise thing to do from a radio frequency standpoint.

"An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 43 (App. Div. 2003). "However, if an expert provides the whys and wherefores rather than bare conclusions it is not considered a net opinion." Ibid. (quoting Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002)).

As indicated by the previously quoted excerpt from his testimony, Verizon's expert Stern provided the "why and wherefores" of his opinion that only a monopole erected along the ridge line in Tenafly could fill the coverage gap and that no other alternative, such as a rooftop antenna or other telecommunications facility, could satisfactorily fill this gap. Therefore, we conclude upon further reflection that his opinion was not an impermissible net opinion. Moreover, there was no conflicting expert testimony presented at the hearing before the Board or other basis for rejecting his opinion.

We turn finally to our conclusion that Verizon failed to present "competent expert testimony that [the Nature Center] is not a viable alternative site." N.Y. SMSA, Ltd. P'ship., supra (slip op. at 13). When one of the Board members, Jeff Grossman, attempted to question Stern as to whether Verizon had considered the Nature Center as an alternative site, Verizon's counsel interceded and made a series of representations regarding the unavailability of this site:

[Mr. Grossman]: So for example, you didn't contact the Tenafly Nature Center along the ridge non-residential?

[Verizon's counsel]: I believe the nature center is located on the Green Acres property under the case of Mendham Township. Green Acres lands are unavailable to use as a wireless communication facility that was determined by the Supreme Court.

MR. GROSSMAN: Did you testify?

[Verizon's counsel]: I testified. I'm making a representation.

MR. GROSSMAN: All right. Because they are very specific boundaries for sites in Tenafly. I'm not sure it was all covered. So I'm asking if any portion of it was not covered was contacted.

[Verizon's counsel]: The additional factors, I believe that property is owned by the municipality, and that would require a public bid. The zoning ordinances are clear in addressing the Borough of Tenafly that only allows cellular wireless communications facilities in the commercial antenna zone which is the Compost facility.

So therefore, even if that site were available, it would require a use variance through the same steps.

In the case of Ocean County Cellular [v.] Township of Lakewood, which was an Appellate Division case, which was certifications denied by the Supreme Court, there is a determination made by the courts, that you can't choose alternate[] sites that require use variances.

So, the overall answer to the question, is when we looked at the nature center, it appears to be Green Acres encumbered in the area that we need. I can get a better analysis of that data. I don't have that this evening.

We reaffirm the conclusion of our May 24, 2010 opinion that these representations by Verizon's counsel did not constitute competent evidence as to whether Verizon considered the Nature Center site for its proposed cell tower or whether that site was in fact available.

However, it is also true that neither the Board nor any of the objectors to Verizon's application presented any evidence regarding the availability of the Nature Center site or the relative merit of that site compared to the church site to fill the gap in coverage. Verizon has implicitly recognized the inadequacy of the evidence presented to the Board regarding the Nature Center site by submitting a certification by Robert Weible, a consultant employed by Verizon for the acquisition of sites for its facilities, that the Nature Center is unavailable as a site for a cell tower because it is "encumbered by Green Acres funding." This certification was not part of the record developed before the Board, and for that reason appellants have filed a motion to strike this part of Verizon's submission in support of its motion for reconsideration.

We have concluded that the issues of Verizon's consideration of the Nature Center site and the availability of that site are too important to be decided based on incompetent evidence or evidence outside the record developed before the Board. Therefore, we remand the case to the Board for supplementation of the record regarding these issues and reconsideration of its denial of Verizon's application in light of its findings on these issues as well as the legal conclusions and factual findings set forth in this opinion.

Accordingly, we grant Verizon's motion for reconsideration, vacate our May 24, 2010 opinion, and remand the case to the Board for further proceedings in conformity with this opinion. Jurisdiction is not retained.

 

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A-1152-08T2

May 24, 2010

July 21, 2010