ENRIQUE CUEVAS v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HOLMDEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2440-08T32440-08T3

ENRIQUE CUEVAS,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF HOLMDEL AND

SPRINT SPECTRUM, L.P.,

Defendants-Respondents.

__________________________________________

 

Argued December 8, 2009 - Decided

Before Judges Carchman, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2249-08.

Alexis L. Gasiorowski argued the cause for appellant (Gasiorowski & Holobinko, attorneys; R.S. Gasiorowski of counsel; Christie Gasiorowski, on the brief).

Michael A. Irene, Jr., argued the cause for respondent Zoning Board of Adjustment of the Township of Holmdel (Mr. Irene, on the brief).

Gregory J. Czura argued the cause for respondent Sprint Spectrum, L.P. (Mr. Czura, on the brief).

PER CURIAM

Plaintiff Enrique Cuevas appeals from the dismissal of his action in lieu of prerogative writs, by which he sought to set aside approval granted for a new telecommunications facility in the Township of Holmdel. We affirm parts of the trial court's judgment, but we reverse the judgment of dismissal and remand for a full trial on issues that the trial court excluded from its review.

I.

In early 2006, defendant Sprint Spectrum, L.P., applied to defendant Township of Holmdel Zoning Board of Adjustment for variances and site plan approval under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99. Sprint sought to construct a new telecommunications facility by appending nine panel antennas to an existing water tank located in a residential zoning district. The Board held public hearings on four dates from April to September 2006.

The subject property is a wooded flag lot, almost nine acres in area, designated as 21 Deer Path Road in Holmdel Township. The main structure on the property is a water tank that is 140 feet in height and 62.5 feet in diameter, located in the rear of the property, approximately 1,100 feet from Deer Path Road. The only other improvements are a gravel driveway leading to the water tank and a chain link fence around it. The nearest residence is 284 feet from the tank. One other neighboring home is within 500 feet, and ten homes within 1,000 feet. The tank is heavily screened by mature vegetation.

The height of the water tank will not be increased by the nine antennas Sprint will install on the top surface. At the base of the tank, Sprint plans to construct a fifteen by twenty-five foot gravel area, surrounded by a wooden fence seven feet tall. Within the fenced area, Sprint will install an electrical meter panel, a telephone connection cabinet, and two equipment cabinets, each about the size of a refrigerator. Electrical and telephone service will be provided through underground cables running along trenches in the driveway. The driveway will be slightly re-aligned to avoid encroachment on a neighboring lot, and one gravel parking spot will be added near the tank.

Sprint anticipates scheduled service by a technician only about once a month during the day. Otherwise, there will be no activity at the telecommunications facility, except emergency service. Attached to the steel frame holding the equipment and telephone cabinets will be a pole, about eight feet tall, with flood lights directed at the equipment for use only in the event of nighttime service. The lights will be operated by a manual switch, with a timer as back-up to turn them off if the technician does not.

The Holmdel Township zoning ordinance requires that an applicant for telecommunications facilities prove a need for wireless antennas within the Township. The applicant must present expert testimony as to the "suitability" of "all existing communications towers within Holmdel Township and surrounding area." Holmdel, N.J., Revised General Ordinances 30-155.2b (2009).

Sprint presented expert testimony from four witnesses: (1) Joseph Chiaravallo, an expert in radio frequency compliance, who testified that the proposal would be in compliance with regulations of the Federal Communications Commission (FCC); (2) Glen Pierson, an expert in radio frequency, who testified about a "gap" in Sprint's service within the proposed coverage area and possible alternate sites Sprint reviewed before selecting the water tank; (3) Jeffrey Kirby, an engineer, who described the property, the proposed changes, and possible alternate sites; and (4) David Karlebach, a planning expert, who testified about his understanding of the Township's zoning ordinances and the statutory criteria for variances that Sprint may need. The Board also heard the testimony of its own planner, Paul Phillips, and of Marilyn Manzo, representing one of the alternative sites considered by Sprint, as well as the comments of a number of objectors to the proposal, including plaintiff Cuevas.

The Township ordinance designates the zoning district of the property as R-40B, "Residential and Agriculture." Although wireless telecommunications antennas and towers are permitted as conditional uses within the Township, id. 30-127.5b, residential districts are not included in a listing of sequential preferences for the location of new facilities. The ordinance provides that antennas must be located in the following order of priorities:

(a) The first priority shall be existing wireless communications towers, including those owned by Holmdel Township, within any nonresidential district in the municipality.

(b) The second priority shall be any other wireless communication towers located in Holmdel Township.

(c) The third priority shall be an existing building or structure located within a nonresidential district in Holmdel Township.

(d) The fourth priority shall be a new tower located within a nonresidential district in Homdel Township.

[Id. 30-155.2b(2).]

Sprint's planner, Karlebach, testified that although the proposal meets all the requirements of the ordinance, it is not in a "prioritized" site listed in section 30-155.2b(2). Since the proposal does not "satisfy those locational criteria," he believed that Sprint needs a "d(3) conditional use variance." See N.J.S.A. 40:55D-70d(3). However, he did not believe that a second "d" variance under N.J.S.A. 40:55D-70d(1) is necessary for multiple uses of property because the ordinance already permits antennas to be appended to existing buildings.

The ordinance states that "antennas may be erected on existing towers, buildings or structures" and "an equipment compound may be constructed in support of such antennas consistent with the following requirements:"

(a) Antenna arrays may be mounted on existing buildings or structures but shall not extend beyond the overall height of any such building or structure by more than ten (10) feet.

(b) An equipment compound consisting of no more than four thousand (4,000) square feet in area may be erected in support of such antenna arrays provided it is:

[Shielded from public view].

(c) The equipment building shall be situated within a fence at least seven (7) feet high . . . which shall not be of chain link and shall include a locking security gate.

(d) Antennas . . . shall be suitably finished and/or painted so as to minimize their visual impact on the landscape. . . .

[Id. 30-155.2b(4).]

The Board considered whether an alternative site was suitable for Sprint's needs. It heard testimony that the Manzo tower, an existing telecommunications tower in nearby Marlboro Township, could not support Sprint's antennas because it was already overloaded with antennas and equipment. Marilyn Manzo, representing the owners of the Manzo tower, expressed interest in pursuing Sprint's needs but admitted that the tower "currently has more equipment on it than it can handle." She stated that she was "in the process of performing an audit . . . [which] will ultimately result in the removal of excess equipment." She stated that the audit would be completed in two months, at which time she would have equipment removed that is no longer in use, and hire a company to conduct another study to show that the Manzo tower was no longer overloaded.

At the conclusion of the 2006 hearings, the Board voted four to two in favor of Sprint's application, but because five votes are needed for a "d" variance, see N.J.S.A. 40:55D-70d, the application was denied.

The Board adopted a resolution of denial on November 9, 2006 (the first or 2006 resolution). In that resolution, the Board concluded that a "d(3)" conditional use variance is required because the proposal fails to meet any of the "siting priority" locations set forth in ordinance section 30-155.2b(2). The resolution focused on the insufficiency of evidence regarding whether the Manzo tower is a suitable alternative and concluded Sprint had failed to prove the statutory "positive" and "negative criteria" to be entitled to a variance. See, e.g., Burbridge v. Mine Hill Twp., 117 N.J. 376, 384 (1990); Medici v. BPR Co., 107 N.J. 1, 4 (1987); House of Fire Christian Church v. Zoning Bd. of Adj. of Clifton, 379 N.J. Super. 526, 534 (App. Div. 2005).

Sprint then filed a complaint in lieu of prerogative writs in the Superior Court, challenging the Board's denial of its application. The Board filed an answer. On January 4, 2008, at the prerogative writs trial, Sprint notified the court that it had updated evidence showing that the Manzo tower was not available. Counsel then conferred at the suggestion of the judge, and they agreed to have the matter remanded to the Board for a limited hearing concerning availability of the Manzo tower. The court issued an order on January 9, 2008, for a limited remand on that issue but retained jurisdiction "in case [the Board] again rejects" Sprint's proposal.

On remand, the Board conducted a hearing on February 13, 2008, limited to determining the availability of the Manzo tower as an alternative site. Sprint presented the expert testimony of its engineer, Kirby, who testified about a structural analysis report his company had prepared in 2007. Kirby concluded "that the tower, in its current condition with the antennas that were currently on it . . . would be significantly over-stressed" under current industry standards. Ms. Manzo then testified that she had been continuing an audit since her testimony in September 2006, that she had taken a number of antennas off the Manzo tower, and that she was still in the process of auditing and was "planning to take more off."

The chairman of the Board noted that Manzo had said in September 2006 that her audit would be completed in two months, she would remove unused equipment, and she would hire a company to conduct a study of the tower's availability. Seventeen months later, Manzo still had not completed those tasks. In response to specific questioning about the availability of the tower, Manzo testified, "I would have to say, to be honest, the tower, as it is, would not support Sprint." Consequently, the Board determined that Sprint had proven the unavailability of the Manzo tower and voted six to zero to approve Sprint's application.

On March 31, 2008, the Board adopted a resolution granting the application (the second or 2008 resolution). In addition to finding that the Manzo tower was not available as an alternative site, the Board concluded that Sprint had "demonstrated both the positive criteria and negative criteria" required for a "d" variance, the property "continues to be appropriate for the proposal" despite the deviations from the conditional use standards, the proposal did not cause any "significant adverse impact . . . to the surrounding property owners," and granting the application will not "cause substantial impairment of the intent and purpose of the zone plan and zoning ordinance."

In addition to routine general conditions, the Board imposed five specific conditions: (1) that Sprint dismiss the pending litigation challenging the Board's initial denial;

(2) that the antennas and related equipment attached to the antennas not project above the water tank and be the same color as the tank; (3) that the details of lighting and the gravel parking area be "reviewed and approved by the Board Engineer" and the notes regarding these details be included in the site plan; (4) that the gravel driveway be relocated "and set back no less than five feet from the property line"; and (5) that Sprint comply with any other requirements of other government agencies and officials.

In accordance with the second resolution, Sprint dismissed its action in lieu of prerogative writs in the Superior Court. Other than publication of the Board's second resolution, no further notice was provided to the public stating that Sprint would dismiss its prerogative writs action, and the court conducted no further proceedings. Cf. Whispering Woods at Bamm Hollow, Inc. v. Middletown Plan. Bd., 220 N.J. Super. 161, 172 (Law Div. 1987) (proceedings required for settlement of zoning litigation); see also Friends of Peapack-Gladstone v. Bor. of Peapack-Gladstone Land Use Bd., 407 N.J. Super. 404, 422 (App. Div. 2009) (same).

Within forty-five days from publication of the Board's second resolution, plaintiff Cuevas filed his own complaint in lieu of prerogative writs in the Superior Court challenging the Board's granting of Sprint's application.

By order dated October 7, 2008, the Law Division ruled that plaintiff's claims would be limited to actions of the Board taken after the court's remand. The court stated that if plaintiff wished to challenge determinations of the Board made as a result of the 2006 hearings, plaintiff should have intervened in Sprint's earlier prerogative writs action under Rule 4:33-1, pertaining to intervention as of right. The court concluded that plaintiff was out of time and barred from "challenging the variances granted pursuant to the first application." Noting that Sprint had dismissed its cause of action, the court said that plaintiff "can't relitigate something that's already been dismissed . . . with prejudice." The court determined that the only timely challenge, and the court's review, were limited to the issues raised on the remand hearing and "the action of the Board taken at its public meeting on February 13, 2008."

On December 5, 2008, the Law Division held a prerogative writs trial and placed its decision on the record upholding approval of Sprint's application. By order dated December 11, 2008, the court entered judgment dismissing plaintiff's complaint with prejudice. Plaintiff appeals from the orders of October 7 and December 11, 2008.

II.

On appeal, plaintiff argues the following: (1) the Law Division erred in limiting the scope of review in the trial of his prerogative writs cause of action; (2) Sprint's notices for the Board hearings were deficient because they failed to specify all the variances sought; (3) the Board's granting of Sprint's application was arbitrary, capricious, and unreasonable; (4) the Board unlawfully delegated authority to its engineer and thus violated the public's due process rights; and (5) because the Board failed to grant several variances listed in Sprint's notices, those variances must be deemed to have been denied.

We agree with plaintiff's first point that the Law Division erred in limiting the scope of its prerogative writs review of the Board's decision. We find no error in other points plaintiff has raised but do not address the merits of the Board's decision because it should initially be reviewed in the Law Division.

Decisions of zoning boards to grant or deny applications constitute quasi-judicial decisions of municipal administrative agencies. Willoughby v. Plan. Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997); Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-42 (App. Div. 1958). They are subject to review in the Superior Court in an action in lieu of prerogative writs, R. 4:69, and the court's review must be based solely on the record before the zoning board. Kramer, supra, 45 N.J. at 289.

The determination of a zoning board is presumed to be valid. Id. at 285; Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). In reviewing a zoning board's action for compliance with the MLUL, the court must determine whether the decision is "supported by the record and is not so arbitrary, capricious or unreasonable as to amount to an abuse of discretion." New Brunswick Cellular v. Bd. of Adj. of S. Plainfield, 160 N.J. 1, 14 (1999); Smart SMR of N.Y. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1988); Ocean Cty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002). A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. See Cell S. of N.J., supra, 172 N.J. at 82. The burden is on the challenging party to show that the board's decision was arbitrary, capricious, or unreasonable. See Smart SMR of N.Y., supra, 152 N.J. at 327; Kramer, supra, 45 N.J. at 296.

On further judicial review, appellate courts apply the same standards as the trial court. Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enters. v. Plan./Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). Appellate courts must also avoid substituting their judgment for that of a board. Ibid.

This highly deferential standard of judicial review does not apply to purely legal questions affecting the zoning board's decision. In such circumstances, a presumption of correctness does not apply, and the court must determine for itself whether the law has been applied correctly. See Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); Urban v. Plan. Bd. of Manasquan, 238 N.J. Super. 105, 111 (App. Div. 1990), modified, 124 N.J. 651 (1991).

This appeal requires that we apply these several standards of review to plaintiff's arguments.

A.

The Law Division erred as a matter of law in its order of October 7, 2008, restricting plaintiff's claims. In its oral decision, the court said: "I will only consider the decision of the planning board [sic] on the remand with respect to the availability of the [Manzo] tower and nothing that the planning board did on the prior case will be considered by this court as part of this prerogative writ."

In limiting the scope of its review, the Law Division erroneously concluded that plaintiff "is barred from challenging the variances granted pursuant to the first application." The Board had not granted any variances through its first resolution of November 2006. Only the second resolution of March 2008 contained findings and conclusions granting a "d(3)" variance, and plaintiff filed a timely cause of action challenging the second resolution. See R. 4:69-6(b)(3) (setting forty-five day limitations period from publication of notice of board's resolution).

The second resolution included the following relevant findings and conclusions:

(12) . . . [T]he applicant has now demonstrated, and . . . indeed it is uncontroverted, that the Manzo tower is not available for use by the applicant. . . .

(13) . . . As reflected in its prior resolution, the Board found that the applicant requires "d(3)" (NJSA 40:55D-70d(3)) variance relief . . . . Essentially, the Board's prior denial was predicated upon the applicant's failure to rule out the possibility of co-location of its facilities on the nearby Manzo tower.

(14) . . . [T]he applicant has now ruled out the possibility of such co-location. . . . As a result of these findings, and in accordance with remand from the Court, the Board therefore reconsidered its denial of this application, and finds that the application should be granted.

(15) The Board finds that the applicant has demonstrated both the positive criteria and negative criteria necessary to grant "D" variance relief . . . .

(16) The Board further finds that the site continues to be appropriate for the proposal, notwithstanding deviations from the conditional use standards (primarily the siting priorities) . . . . The Board finds no significant adverse impact . . . to surrounding property owners . . . insofar as the water tank upon which the applicant's antennas will be installed is a structure which presently exists at the site. The Board further finds in this regard that the site is heavily wooded, and that the applicant's antennas will not project above the water tank and . . . will be the same color as the tank, thus mitigating any negative visual impact that may otherwise result. . . . [T]his application will not cause substantial detriment to the public good, nor will it cause substantial impairment of the intent and purpose of the zone plan and zoning ordinance. . . .

(17) . . . [C]ertain [bulk or dimensional] zoning deviations presently exist at the site . . . . [T]hese existing conditions are not being altered or exacerbated by this application . . . and as a result, no relief is required with regard to same, nor is any such relief granted herein.

(18) The Board further finds that site plan approval can and should be granted with regards to this matter.

In comparison, the first resolution of November 2006 stated in relevant part:

(13) The Board finds that the applicant requires "d(3)" (NJSA 40:55D-70d(3)) variance relief . . . . In particular, the proposal fails to meet any of the "siting priority" conditions/standards set forth in Ordinance section 30-155b2. The applicant also seeks relief for certain [bulk or dimensional] deficiencies that presently exist at the site, but which are not being altered by the application . . . .

. . . .

(15) In this case, the Board specifically finds that the applicant has failed to prove the positive criteria necessary to support approval of the application. . . . The Board finds that the applicant presented proof on [the existence of a significant service "gap" and the manner in which its proposal would "fill that gap"]. . . . [T]he Board finds that the applicant failed to carry its burden of proof [that the proposal is the "least intrusive means of filling the "gap"].

(16) The Board finds that an alternate site may be available . . . .

. . . .

(20) . . . [T]he Board further finds that the applicant has failed to prove the negative criteria.

(Emphasis added.)

As shown by the findings and conclusions of the two resolutions, the Board granted no relief to Sprint in 2006; it granted a "d(3)" variance only by the 2008 resolution. Also, the only findings in the 2006 resolution that might be characterized as favorable to Sprint are the existence of a significant service "gap" and the manner in which Sprint proposed to "fill that gap[,]" but plaintiff Cuevas has not contested either of those factual issues in his prerogative writs complaint.

In limiting plaintiff's claims to the Board's actions after remand, the Law Division reasoned that plaintiff could have, but failed to, intervene as of right under Rule 4:33-1 when Sprint filed its complaint in lieu of a prerogative writs after the Board's 2006 resolution.

To qualify for intervention as of right pursuant to Rule 4:33-1, a litigant must

(1) claim "an interest relating to the property or transaction which is the subject of the transaction," (2) show [that the movant] is "so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest," (3) demonstrate that the "[movant's] interest" is not "adequately represented by existing parties," and (4) make a "timely" application to intervene.
 
[Sutter v. Horizon Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 106 (App. Div. 2009) (quoting ACLU of N.J. v. Cty. of Hudson, 352 N.J. Super. 44, 67 (App. Div.), certif. denied, 174 N.J. 190 (2002)).]

If the applicant meets these four criteria, the court must permit intervention. Ibid.

Plaintiff did not satisfy all four conditions. Because the Board denied the application in 2006 and was defending the prerogative writs action brought by Sprint, the interests of plaintiff Cuevas were "adequately represented by existing parties" in that prior litigation. Therefore, plaintiff did not have a right to intervene under Rule 4:33-1. See Bldrs. League of S. Jersey, Inc. v. Gloucester Cty. Util. Auth., 386 N.J. Super. 462, 469 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007). Only when the Board granted a "d(3)" variance and approved Sprint's application in 2008 was plaintiff's interest "not adequately represented" by the Board.

Sprint and the Board cite Monroe Realty Corp. v. Middletown Properties, Inc., 182 N.J. Super. 659 (Law Div. 1981), and Meehan v. K.D. Partners L.P., 317 N.J. Super. 563 (App. Div. 1998), to support the Law Division's conclusion of law that plaintiff was required to intervene in the earlier action. In Monroe Realty, supra, the Law Division denied as untimely an objector's motion to intervene in opposition to a settlement reached by the developer and the municipal zoning board. 182 N.J. Super. at 663. In this case, there was no settlement, and the holding of Monroe Realty has not been followed in our subsequent decisions.

In Meehan, supra, the municipal planning board had granted a development application, and a neighboring objector had brought a prerogative writs action to set aside the board's approval. 317 N.J. Super. at 565. The trial court ruled in favor of the objector and the developer appealed. While the appeal was pending, the objector and the developer settled their dispute, and the development approval granted by the planning board was reinstated. Ibid. Another objector then moved to intervene in the original prerogative writs action to challenge the zoning approval that is, to take the position of the first objector who had settled with the developer. The trial court denied the second objector's motion to intervene as untimely. Ibid.

On appeal, we reversed the denial of intervention, but we limited the issues to challenging the settlement and not the original approval. Ibid. In limiting the scope of the second objector's cause of action, we reasoned that he had not acted in timely fashion to challenge the planning board's original approval of the developer's application. Id. at 572. Permitting intervention but limiting its scope to issues timely raised "represent[ed] a sound balance between his late intervention and the protection of his rights." Ibid.

In Chesterbrooke Ltd. Partnership v. Planning Board of Chester, 237 N.J. Super. 118, 124-25 (App. Div.), certif. denied, 118 N.J. 234 (1989), we reversed the Law Division's denial of intervention when the zoning board chose not to appeal an adverse decision of the Law Division and an objector sought to pursue an appeal in place of the zoning board. We concluded that "the Board no longer 'adequately represented' objectors' interest." Id. at 125.

We reached a similar decision in Warner Co. v. Sutton, 270 N.J. Super. 658 (App. Div. 1994), where certain environmental groups sought to intervene after the defendant planning board and the plaintiff mining company reached a settlement in their zoning dispute. We concluded that the environmental groups had not been dilatory in seeking intervention because only after a consent order was entered setting forth the terms of the settlement did "the interests of the [environmental groups] and the Township defendants truly diverge[.]" Id. at 665.

Although these cases are instructive on the question of what rights and restrictions may control the scope of a late-appearing objector's challenge to a zoning approval, they have limited application to the Law Division's ruling in this case. Here, plaintiff is not a late-appearing objector. He had no objections to the findings and conclusions the Board expressed in its 2006 resolution and had no reason to intervene in that case. His only objections were timely made to the 2008 resolution. He would have been in the same position as the intervenors in Chesterbrooke, supra, 237 N.J. Super. 118, and Warner Co., supra, 270 N.J. Super. 658, if, instead of filing a new prerogative writs complaint, he had moved to intervene in Sprint's 2006 prerogative writs action after Sprint and the Board disposed of their dispute through the Board's 2008 approval. Under our holdings in Chesterbrooke and Warner Co., the court would have been compelled to grant plaintiff's motion to intervene.

We need not decide in this case whether the better procedural mechanism for asserting plaintiff's claims is intervention in the earlier action or, as he chose, filing his own prerogative writs action. See Meehan, supra, 317 N.J. Super. at 571; Warner Co., supra, 270 N.J. Super. at 667-68. Through either procedure, the issue decided by the Law Division and now before us would be the scope of plaintiff's challenge to the zoning approval.

In considering plaintiff's complaint in this case, the Law Division seemed to conclude that the Board had granted variances to Sprint in 2006 and denied the application as a whole only because the Manzo tower may have been available as an alternative site. Whether or not that was the Board's intent, its 2006 resolution did not grant any variances or other relief to Sprint. As quoted at length, the first resolution of denial stated that Sprint failed to prove the statutory positive and negative criteria required for the granting of a variance under N.J.S.A. 40:55D-70. The Board's opposite conclusion reached by unanimous vote after remand was an "action of the Board taken at its public meeting on February 13, 2008" subject to review in the prerogative writs action of plaintiff Cuevas.

However, because at the remand hearing the Board heard testimony only relevant to the availability of the Manzo tower, the Board's granting of a "d(3)" conditional use variance was dependent on evidence presented in the earlier 2006 hearings. Board members were provided transcripts of the 2006 hearings before they voted in 2008. To challenge the Board's actions of 2008, plaintiff must necessarily refer to the 2006 record. The court's ruling that plaintiff was barred from challenging the granting of those variances on any ground other than availability of the Manzo tower was legal error and must be reversed.

Nevertheless, the decision of the Law Division at the prerogative writs trial on December 5, 2008, was not as restricted as the court's statements suggested. The court made rulings beyond affirming the unavailability of the Manzo tower, and plaintiff challenges some of those rulings on this appeal.

B.

Plaintiff argues that Sprint's notices for both the original 2006 hearings and the 2008 hearing on remand did not comply with the requirements of the MLUL. The Law Division concluded that notice was sufficient "even though it lacked certain technical information regarding the specific variance relief at issue and didn't specifically advise that such application was for a special use." We agree.

"[P]roper public notice in accordance with the requirements of the MLUL is a jurisdictional prerequisite for a zoning board's exercise of its authority." Pond Run Watershed Assoc. v. Twp. of Hamilton Zoning Bd. of Adj., 397 N.J. Super. 335, 350 (App. Div. 2008). The MLUL requires that a notice state the following information:

[T]he date, time and place of the hearing, the nature of the matters to be considered . . . an identification of the property proposed for development by street address, . . . and the location and times at which any maps and documents for which approval is sought are available . . . .

[N.J.S.A. 40:55D-11.]

Sprint's notices provided all the information listed in the statute.

Sprint's original notice of April 6, 2006, stated Sprint was making an application

for a use and height variance and preliminary and final site approval for the construction of a proposed new wireless communication facility consisting of nine (9) panel antennas, at a maximum height of 140 feet above grade, on an existing water tank . . . [and] cabinets of equipment . . . to be installed inside a proposed 15' X 25' fenced compound.

The notice then listed six bulk and dimensional variances and three waivers that Sprint was seeking from the zoning regulations, and it stated further that Sprint would apply for "any other variances, waivers, zoning permits, conditional use permits, special exceptions and/or other approvals and/or zoning interpretations requested or that the Board may deem necessary so as to construct an unmanned wireless communications facility as described above." The notice gave the location and address of the property, its zoning district, and the date, time, and place of the scheduled Board hearing. It also stated that the "maps, plans, plat and application" were on file and available for review in the Board's office.

On January 23, 2008, Sprint published and served a notice regarding the remand hearing. In addition to the same information listed in the original notice as described above, the 2008 notice provided a brief history of Sprint's prerogative writs action in the Superior Court and the court's remand order. The notice then stated: "At the remand hearing, there will be no new testimony and no other witnesses for any issue other than this limited area for supplementation of the record and reconsideration by the Board and that the record, as otherwise constituted, shall be closed . . . ."

Plaintiff argues these notices were deficient because they failed to state that Sprint was applying for two "d" variances and that one was a conditional use variance. In fact, Sprint believed it needed only one "d" variance, under subsection "d(3)" for deviation from the standards for a conditional use.

In addition, in Perlmart of Lacey, Inc. v. Lacey Township Planning Board, 295 N.J. Super. 234, (App. Div. 1996), we considered the meaning of the phrase "the nature of the matters to be considered" in the statute. Focusing on the purpose of notice to inform interested persons who may not be lawyers, developers, or zoning officials, we said the notice "should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission." Id. at 238 (internal quotations omitted). Relevant to plaintiff's contentions in this case, we also said that notice is not deficient because the applicant fails to "specify all of the particular variances required." Id. at 237 n.3; see also Scerbo v. Bd. of Adj. of Orange, 121 N.J. Super. 378, 388-89 (App. Div. 1972) (notice was sufficient "even though it lacked certain technical information regarding the specific variance relief at issue").

In Pond Run, supra, we employed similar criteria to evaluate the sufficiency of notice: "the critical element of such notice has consistently been found to be an accurate description of what the property will be used for under the application." 397 N.J. Super. at 352. We said that the notice statute requires a "common sense description of the nature of the application, such that the ordinary layperson could understand its potential impact upon him or her." Ibid. (quoting Perlmart, supra, 295 N.J. Super. at 239).

The notices in this case clearly alerted the public that Sprint was seeking approval for a new telecommunications facility that would consist of nine panel antennas placed on an existing water tank at a maximum height of 140 feet above grade. They provided sufficient information for the public to understand that the property would be used for two different purposes, for an existing water tank and a new telecommunications facility. The notices also specified a number of bulk and dimensional variances and waivers that may have been needed for approval of Sprint's application, thus notifying the public of the deviations from zoning regulations that were required.

The notice after remand also alerted the public about the limited purpose of the remand hearing, namely, the structural suitability and availability of the Manzo tower. It included notice that the Board would reconsider its denial of Sprint's application for the subject property and all the relief previously requested in light of any new testimony pertaining to the Manzo tower.

The public was properly notified about the nature of the matter to be considered and the types of relief requested by Sprint. The notices gave "an accurate description of what the property will be used for under the application" and, consequently, complied with the requirements of the MLUL. Perlmart, supra, 295 N.J. Super. at 238.

The Law Division correctly rejected plaintiff's claims regarding sufficiency of notice.

C.

Plaintiff contends the Board improperly delegated authority to its engineer to determine details related to its approval of Sprint's site plan. Citing Lionel's Appliance Center, Inc. v. Citta, 156 N.J. Super. 257, 270 (Law Div. 1978), the Law Division rejected plaintiff's argument, stating that the engineer was delegated authority to oversee minor site plan issues, namely, the re-alignment of the gravel driveway, location of a single gravel parking spot near the fenced enclosure, and the lighting of the equipment cabinets.

Plaintiff argues that the Board approved the site plan "without ever seeing these revisions," and the public was thus deprived of due process because it would not get an opportunity to dispute the changes. Plaintiff's arguments are without merit. In their testimony, Sprint's engineer and planner described the driveway, parking, and lighting details in the plan. The public was made aware of these changes at the hearings and by the plans on file. We agree with the Law Division that these technical details were appropriately delegated to the board engineer to oversee in their implementation.

D.

Because we remand to the Law Division to consider plaintiff's arguments challenging the approval granted, we do not determine other issues argued by plaintiff, in particular, what variances were required for approval of Sprint's application and whether the Board's decision was arbitrary, capricious, or unreasonable. We add only that the Supreme Court established in Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285, 298-99 (1994), the standards applicable to a "d(3)" variance for deviation from conditions imposed by ordinance for a conditional use of property.

Plaintiff argues that Sprint's notices also referenced bulk and dimensional variances that were required under N.J.S.A. 40:55D-70c, and that these variances must be deemed to have been denied because there is no specific granting of those variances in either of the Board's resolutions. On the other hand, the Board and the Law Division stated that no such variances were required because the deviations from the bulk and dimensional regulations already existed before Sprint's application.

In Coventry Square, supra, 138 N.J. at 299-300, the Court treated all the required bulk and dimensional deviations from the zoning regulations as part of the analysis for considering a "d(3)" variance. See also Puleio v. N. Brunswick Twp. Bd. of Adj., 375 N.J. Super. 613, 621 (App. Div.) ("In essence, the "c" variances are subsumed in the "d" variance."), certif. denied, 184 N.J. 212 (2005). At the same time, intensification of a non-conforming use, or a use previously permitted by variance, may require new variances. See id. at 617-20, 623; Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315-16 (1980); Razberry's, Inc. v. Kingwood Twp. Plan. Bd., 250 N.J. Super. 324, 326-27 (App. Div. 1991); N.J.S.A. 40:55D-70d(2). We leave initial resolution of these issues to the Law Division after opportunity for the parties to brief them based on the record established before the Board.

III.

The judgment of the Law Division dismissing plaintiff's complaint is reversed. We remand to the Law Division for trial on all claims brought in plaintiff's complaint that have not been previously decided on their merits and affirmed in this opinion. We do not retain jurisdiction.

 

Numbering corresponds to the paragraph numbers of the resolution.

After the Law Division's opinion in Monroe Realty, our decisions referred favorably to, and eventually adopted, the "Whispering Woods" procedures as appropriate for approving settlements in zoning litigation. See discussion of Whispering Woods, supra, 220 N.J. Super. at 172, in Warner Co. v. Sutton, 274 N.J. Super. 464, 476 (App. Div. 1994), and Friends of Peapack-Gladstone, supra, 407 N.J. Super. at 422.

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A-2440-08T3

March 10, 2010