T-MOBILE NORTHEAST L.L.C. v. BOROUGH OF NORTHVALE PLANNING ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4359-09T3

T-MOBILE NORTHEAST, L.L.C.,

F/K/A OMNIPOINT COMMUNICATIONS,

INC.,

Plaintiff-Respondent,

v.

BOROUGH OF NORTHVALE PLANNING/

ZONING BOARD OF ADJUSTMENT,

Defendant-Appellant.

_______________________________________

April 29, 2011

Submitted March 29, 2011 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6908-09.

Gregg F. Paster & Associates, attorney for appellant (Gregg F. Paster, of counsel; Mr. Paster and Meghan V. Tomlinson, on the brief).

Gregory J. Czura, P.A., attorney for respondent.

PER CURIAM

Defendant Borough of Northvale Planning/Zoning Board of Adjustment (Board) of the Borough of Northvale (Borough) appeals from a judgment entered by the Law Division on April 12, 2010, which reversed the Board's denial of an application by plaintiff T-Mobile Northeast, L.L.C. (T-Mobile), for preliminary and final site plan approval and variances required for the construction of telecommunication facilities in the Borough. We affirm.

Here, T-Mobile, previously known as Omnipoint Communications, Inc., sought to construct a 110-foot monopole on property on Industrial Parkway in the Borough in order to address what T-Mobile said was a gap in wireless communication coverage in the area. The property upon which the monopole would be installed is located in the Light Industrial (LI) zone. T-Mobile submitted an application to the Board, seeking variances for use, height, side and front yard setbacks, lot depth, width and area.

The Board conducted public hearings on T-Mobile's application on May 7, 2008, June 4, 2008, March 4, 2009, April 1, 2009, and June 3, 2009. At those hearings, T-Mobile presented testimony in support of its application from Mark Nidel, its radio frequency health and safety expert; Bob Leavell (Leavell), its radio frequency engineer; John Moricz (Moricz), its site acquisition specialist; Todd M. Hay (Hay), a professional engineer who prepared T-Mobile's site plan; Brian Lainson (Lainson), the site engineer; and Timothy M. Kronk (Kronk), a professional planner.

At the June 3, 2009, hearing, the Board voted to deny the application. In the resolution memorializing its action dated July 1, 2009, the Board made the following findings:

1. The proposed site plan and variance approval would have a detrimental impact on the public by impairing the aesthetics of the site; the proposed monopole will have a negative visual impact in the surrounding community.

2. The existing building is currently being used for industrial use and the new proposed plan adds a second, primary industrial use. The applicant is proposing an additional, higher intensity use, not an accessory use or expansion of an existing use.

3. There were significant negative criteria associated with the project, namely that the proposed application constitutes, in the Board's judgment, overuse of the property which is already hosting a commercial use requiring significant traffic, noise and aesthetic detriments in close proximity to a residential zone. Furthermore, the property has four (4) existing lot and setback variances, and to add the additional variances required by the application would contravene the borough master plan and zoning plan.

4. There was significant public opposition to the project from neighboring residents who expressed concern about the aesthetic, noise, drainage and other issues related to the installation of the requested equipment at the proposed site.

Thereafter, T-Mobile filed an action in lieu of prerogative writs in the Law Division, seeking reversal of the Board's decision. The trial court conducted a trial in the matter on March 26, 2010, and on April 12, 2010, filed a written opinion in which it concluded that the Board's action was arbitrary, capricious and unreasonable. The court found that the record did not support the Board's findings.

The court noted that, after the Board acted, the Borough had amended its zoning ordinance to permit wireless telecommunications facilities in the LI zone as a conditional use, thereby indicating that the property was "particularly suited for the proposed use[.]" The court also noted that the Board had expressed concern about the visual impact of the monopole, but the court found that certain computerized photos, which showed the proposed structure from various locations, indicated that "there was no substantial aesthetic detriment to the neighborhood."

The court additionally found that the record did not support the Board's finding that the monopole would represent a more intensive use of the property, noting that there was no testimony to support that conclusion, and the evidence presented revealed that "the unmanned facility would generate no traffic, noise, or congestion." Moreover, the court found that there was no evidence to support the Board's conclusion that the proposed structure would represent an "overuse" of the property that would "contravene the [Borough's] master plan."

The court further found that there was no support in the record for the Board's finding that the monopole would have a detrimental impact on the public because it would be constructed near a residential zone. The court noted that, while the structure might be "aesthetically displeasing" to some of the Borough's residents, the Board was required "to balance the positive and negative" impacts of the structure. The court did not find that the monopole would be a "substantial detriment" to the zoning plan.

The court stated that T-Mobile had satisfied the positive and negative criteria required for issuance of the variances. The court wrote that:

T-Mobile has presented substantial and uncontroverted evidence concerning the general public welfare and particular suitability of the site chosen. T-Mobile provided uncontroverted testimony [which established] the minimal effect the monopole will have on the surrounding community. T-Mobile also offered reasonable conditions to the Board, such as "tree" stealthing options, in order to ameliorate any perceived negative impacts associated with the site.

The court wrote that no evidence had been presented to dispute the record that T-Mobile had established, and the findings in the Board's resolution were without evidential support. The court concluded that the Board's decision to deny the variance was arbitrary, capricious and unreasonable. The court reversed the Board's decision, granted the variances and site plan approvals and remanded the matter solely for the purpose of considering the impositions of "reasonable conditions" regarding options for camouflaging the monopole. The trial court entered an order dated April 12, 2010, memorializing its decision. This appeal followed.

The Board argues that: 1) the trial court erred by reversing its decision because there was an adequate basis in the record to support its denial of T-Mobile's application; 2) the setback and height variances sought by T-Mobile would have a substantial detrimental impact on the public because they create significant safety concerns, overcrowding and a visual nuisance; 3) the addition of a second primary nonconforming use on the property would be contrary to the Borough's code; 4) it followed applicable statutory guidelines and properly exercised its discretion when it determined that the negative impact of the structure outweighed the positive impact; and 5) the court erred by finding that its action was arbitrary, capricious and unreasonable. We find no merit in these contentions.

When the trial court reviews a decision of a municipal body, it should defer to the decision unless it is shown to be arbitrary, capricious and unreasonable. Waste Mgmt. of N.J., Inc. v. Union Cnty. Utils. Auth., 399 N.J. Super. 508, 525 (App. Div. 2008) (citing Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965)). Moreover, "[b]ecause variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant." N.Y. SMSA, Ltd., P'ship v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). We apply the same standard as the trial court when we review its judgment. Ibid.

Here, T-Mobile sought a use variance pursuant to N.J.S.A. 40:55D-70(d), which provides, among other things, that such a variance may be granted "[i]n particular cases and for special reasons[.]" Ibid. A use variance may not issue unless it "can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." Ibid.

Although N.J.S.A. 40:55D-70(d) does not require a balancing of the positive and negative criteria, "the need for balancing is implicit in the statutory requirement that the grant of a variance must be 'without substantial detriment to the public good.'" Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 164 (1992) (quoting Medici v. BPR Co., 107 N.J. 1, 22 n.12 (1987)). Moreover, under N.J.S.A. 40:55D-70(d), only a "'substantial'" detriment will support the denial of a variance. Ibid. (quoting Medici, supra, 107 N.J. at 22-23, n.12).

The Board argues that T-Mobile failed to satisfy the positive criteria because it could not show that the site was suitable for the construction of the monopole. According to the Board, T-Mobile failed to fully explore other construction sites, and the trial court erred by relying upon a subsequent amendment to the zoning ordinance which allows telecommunications facilities as conditional uses in the LI zone. We disagree.

A telecommunications facility serves the general welfare and thereby satisfies the positive criteria under N.J.S.A. 40:55D-70(d) if the use is particularly suited to the proposed site. Smart SMR v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 331-32 (1998). In this case, T-Mobile presented sufficient evidence showing that the site is particularly suitable.

Leavell testified as to the coverage gap in the Borough and stated that the proposed monopole would increase coverage. Moreover, Moricz's testimony established that T-Mobile had undertaken a good faith search for alternative sites. He stated that the site selected was suitable because it is in an industrial zone, and a monopole on other sites would be more visible to residential neighborhoods.

In addition, the trial court did not erroneously rely on the change in the zoning ordinance. The court merely noted that the zoning change had addressed in part concerns about the suitability of the site because the zoning change allowed telecommunications facilities as conditional uses in the LI zone. Furthermore, the court took note of the zoning change only after it had determined that T-Mobile had shown, through uncontroverted evidence, that the monopole was needed to fill a gap in coverage and the site chosen was particularly suitable for its construction.

The Board further contends that the trial court erred by reversing its decision because grant of the variances would impair the public good and contravene the Borough's zoning plan. The Board contends that the Borough's ordinance requires a specific "fall zone" and the monopole presented a significant safety concern due to its close proximity to other structures. The Board failed, however, to present any evidence to support these contentions. Indeed, these safety concerns were not mentioned in the hearings, nor were they addressed in the resolution.

The Board further contends that the monopole will have a significant adverse visual impact upon the residential areas. However, at the Board's hearings, Kronk testified that he performed a visual and planning analysis of the proposed structure. He introduced photos showing the visibility of the monopole from various locations, and discussed the possibility of employing certain "stealthing" options to disguise the monopole. Kronk acknowledged that the monopole could be seen but said that it would not be a "substantial detriment." The trial court found that the monopole would have some adverse aesthetic impact, but it was not sufficient to warrant denial of the application. We agree.

The Board additionally contends that the construction of the monopole would contravene the Borough's master zoning plan, which does not allow intensification or alteration of any existing nonconforming use or structure. The Board maintains that, because the monopole "emits radio frequency" and "gives rise to substantial noise concerns[,]" it would intensify a nonconforming use on the property.

It is undisputed that the property contains a nonconforming use. In its resolution, the Board found that adding a second "higher intensity use" would constitute "overuse" of the site. The Board asserts that the monopole would result in "significant traffic, noise and aesthetic detriments in close proximity to a residential zone[.]"

The trial court correctly found, however, that there was no evidence to support these findings. Indeed, Lainson had testified that, based on a study he performed, the monopole would comply with State noise requirements and the Borough's code. He said that the pole would not be lit, it would generate minimal noise, and it would not emit any odor, smoke, glare or dust. In addition, there was no evidence indicating that the monopole would have any impact on traffic or cause congestion in the area. The record thus does not support the Board's contention that the monopole would result in an "overuse" of the property.

The Board further argues that T-Mobile's application was properly denied because T-Mobile did not establish that there are reasonable conditions that could be imposed to lessen the negative impact of the monopole. However, the only negative impact is visual and Kronk testified to the "stealthing" options that could be employed to disguise the structure. While the Board now contends that these options are insufficient, the record does not support that contention.

A