AMANDA MESA v. ZONING BOARD OF ADJUSTMENT OF LEBANON TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

AMANDA MESA,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT

OF LEBANON TOWNSHIP,

NEW CINGULAR WIRELESS PCS,

LLC AND STOCKHOFF, LLC,

Defendant-Respondents.

_____________________________________________________

November 26, 2014

Argued September 15, 2014 - Decided

Before Judges Sabatino, Simonelli, and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-475-12.

John H. Schmidt, Jr. argued the cause for appellant (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Mr. Schmidt, on the brief).

John P. Gallina argued the cause for respondent Lebanon Township Zoning Board of Adjustment.

Christopher John Stracco argued the cause for respondents New Cingular Wireless PCS, LLC and Stockhoff, LLC d/b/a AT&T Mobility (Day Pitney LLP, attorneys; Mr. Stracco and Brian W. Disler, on the brief).

PER CURIAM

New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) sought to construct a 180-foot high wireless telecommunications tower in Lebanon Township (the Township). The Lebanon Planning Board had rejected AT&T's first application and instructed it to find another location with less visual impact. AT&T complied and found the location in question (the Wild Lane Property). As several variances would be required for construction of the tower, AT&T asked the Planning Board to place its application on hold while it applied before the Zoning Board of Adjustment (Board) for a use variance, bulk variances, a height variance, and for site plan approval.

The Board held public hearings over four days during which AT&T presented the expert testimony of radio frequency (RF) engineer Yvan Joseph, site engineer Glen Scherer, and a licensed professional planner, James Dowling. Plaintiff Amanda Mesa, a resident of the Township whose home is located behind the proposed tower site, testified in opposition to the application and presented the testimony of Hank Menkes, president of a consulting business for telecommunications companies. The Board voted to approve the application and adopted a resolution approving it.

Plaintiff filed a complaint in lieu of prerogative writs appealing the Board's decision. The Law Division conducted a trial and issued an order and written opinion1affirming the decision of the Board and dismissing the complaint with prejudice.

The gravamen of plaintiff's appeal challenges the Board's reliance on the testimony of AT&T's RF engineer, claiming it constituted an inadmissible net opinion and did not support the Board's decision. She also claims that AT&T failed to demonstrate that a gap in wireless coverage existed within the municipality. Based upon our review of the record and the applicable law, we reject the arguments raised by plaintiff and affirm.

I.

Yvan Joseph testified before the Board that the proposed tower is necessary to fill a "significant coverage gap" in wireless service of approximately three miles along Routes 513 and 628 in the Township. He presented three exhibits to illustrate the coverage gap, including a RF propagation map, with the locations of the current AT&T telecommunication towers, and two overlays, one demonstrating the current service with the areas experiencing a gap in coverage and one that showed the increase in coverage that the proposed tower would provide. Joseph testified that the new tower's coverage would "fill a significant portion of the gap that exists currently along County Road 513."

In order to determine the current coverage in the area, Joseph testified that AT&T uses drive-test data, which measures the coverage in the area and provides a "very accurate" representation of the coverage.2 Joseph also testified that he reviewed all of the drive-test data and confirmed their accuracy.

Plaintiff's attorney requested that AT&T's drive-test data be produced for review to determine whether it was accurate. AT&T objected to this request and the Board responded that it did not request the data from AT&T, but that plaintiff was free to present her own expert testimony analyzing Joseph's report.

As to the tower's RF emissions, Joseph testified that the maximum permissible exposure guidelines are set by the Federal Communications Commission (FCC), and that the tower's emissions "are well below the FCC's guidelines . . . actually less than one percent of the FCC limits."

Joseph testified that it is necessary that the tower be 180 feet tall as the height of the surrounding trees is about 130 to 140 feet. Joseph explained that the tower has to be higher than the surrounding trees, by at least thirty to forty feet, to provide the proper coverage.

Joseph testified that six other sites were researched for tower locations and that there were no suitable existing structures on which they could place their antennae. He introduced another overlay demonstrating the coverage from a proposed location demonstrating that there would still be a "significant gap for approximately two miles." Two existing lookout towers were also ruled out, as they were too short and were government owned, and AT&T would not be permitted to collocate there.

Joseph also testified that he examined other possible locations on the property to place the tower but determined that one would require the removal of trees prohibited by Highlands Act3 restrictions, and another was impervious and would require building a road.

Joseph discussed alternative technologies including distributed antenna systems and micro-cell technology, but concluded that they would not provide adequate coverage.

Engineer Glen Scherer testified and presented the site plan for the proposed tower. He noted that the tower would be located 252 feet from the nearest property line and that location was mandated by Highlands Act restrictions

[A]nywhere else on this particular lot, there was not enough existing impervious gravel, impervious driveway for us to put the facility. So, I put the facility, basically, in this particular location mainly because of the Highlands restrictions. If we were to go anywhere else on this lot, we would have to generate additional gravel, we would have to generate additional driveway. All those things are considered impervious surface by Highlands, which is an absolute no.

Scherer testified that the tower is currently designed for three wireless carriers, but is able to accommodate up to five or six carriers.

Planner James Dowling described the property as thirty-three acres in the Township's resource conservation zone district, considered a residential zone under the Township's zoning ordinance. Adjoining the property are other residential zones. The tower is 410 feet to the nearest residence on the property, and 560 feet to the nearest off-site residence.

Dowling testified that the site is particularly suited for the proposed use because there is a gap in service; it is a large lot of thirty-three acres; the lot has large, heavy trees; the tower would be 252 feet from the nearest property line and one-fifth of a mile from Route 513; there is already gravel and a gravel road that allows equipment and technicians to the site; and they had made previous efforts to place the tower in a higher priority zone per Township ordinance in its prior application.

As to negative criteria, Dowling opined that there was no substantial detriment to the public good, as there is no glare, vibration, smoke, odor, noise, traffic, or lighting; it is a small building; and it is far below the FCC energy emission requirements. Dowling also testified that the tower does not impair, but advances, the zone plan or ordinance, as the community is protected from the adverse impacts of towers by locating it along Route 513. Also, the number of towers needed is minimized by permitting other carriers to utilize the tower, and adverse visual effects are minimized by the proposed mono-pine design.

Dowling produced a series of photo simulations and testified that there will be some views where the tower is visible, but there are exceptionally large trees and the site is below the peak of the hill. Dowling concluded that while the tower will be visible, that visibility did not rise to the level of being a "substantial detriment" because the nearest off-site residence is 560 feet away and there is exceptionally heavy tree cover. He noted that the prior site proposed by AT&T, and rejected by the Planning Board, had thirty-one to thirty-five properties within 1,000 feet, while this one only has fifteen.

In opposition to AT&T's application, plaintiff presented the testimony of Menkes, who admitted that he has never designed a wireless system for any of the major carriers, but he reviewed thousands of plots for AT&T's technologies. He was admitted as an expert in the field of radio frequency, with the caveat that he has never designed a wireless system.

Menkes criticized Joseph's conclusions as lacking "credible supporting technical data," and stated that AT&T did not present a "search ring" identifying the area of potential properties for the tower. Also, Menkes noted that there was no recent drive-test data, which would account for changes in buildings or trees in the area that affect the coverage. He further noted that Joseph conceded that, even with the proposed tower, there will still be a coverage gap in the northeast portion of County Road 513.

Menkes claimed that AT&T has used alternative technology such as micro-cells and distributed antenna systems in rural areas in a number of states to provide service along critical roadways and neighborhoods. Menkes concluded that AT&T had not "provided adequate RF technical data with convincing clarity to support their case for a new cell site and tower at the proposed location or at the proposed antenna heights."

Plaintiff Mesa testified that she owns the property directly behind the proposed tower site and submitted several photographs and drawings demonstrating how the tower would affect the views from her property, although she admitted that they were not drawn to scale. She testified that the proposed tower will negatively affect property values and will cause environmental damage, but presented no expert support for those claims.

In addition to plaintiff, approximately eleven other residents spoke out in opposition to the application, although none of those other objectors participated in the Law Division action or in Mesa's present appeal.

II.

The appellate court conducts the same review of a municipal board decision as the trial court. Bressman v. Gash, 131 N.J. 517, 529 (1993). We accord "substantial deference" to municipal board decisions, and will only overturn such decisions if they are "so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ibid. The Legislature has recognized that local citizens familiar with a community's characteristics and interests are best equipped to assess the merits of variance applications. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adj., 343 N.J. Super. 177, 198 (App. Div. 2001).

An appellate court must determine whether the "board's decision comports with the statutory criteria and is founded on adequate evidence." Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990). "[T]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board of adjustment, but to determine whether the board could reasonably have reached this decision." Allen v. Hopewell Twp. Zoning Bd. of Adjustment, 227 N.J. Super. 574, 581 (App. Div.) (citing Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987)), certif. denied, 113 N.J. 655 (1988).

III.

Plaintiff's primary argument is that the Board erred in granting AT&T's application because it was based on an inadmissible net opinion of AT&T's RF expert, Joseph. Plaintiff claims the Law Division erred in applying Upper Saddle River to sustain Joseph's testimony because the Board should have required AT&T to produce the raw drive-test data on which Joseph's opinion was based. Without this data, she argues, AT&T failed to meet its burden of establishing that there is a gap in service in the Township.

The Law Division rejected these arguments, noting that

the Lebanon plaintiff also raised an evidentiary issue, with respect to two of the carriers' unwillingness to provide more drive-test data. The Court notes that such data was not provided in Sprint Spectrum v. Borough of Upper Saddle River, 352 N.J. Super.575, 587, 612 (App. Div. 2002), the court finding that the expert testimony as to conclusions to be drawn from the data was sufficient. The Spectrum court found the failure to provide such data to be reasonable even where it had been demanded by the Board. In the Lebanon case, the Board in its discretion decided not to ask for it. In addition as developed in oral argument, there is nothing unique about drive-test data; the plaintiff could have developed it herself. Since the Board in the first instance determines the scope of hearings, its decisions on evidence will be accepted where not arbitrary and capricious, and the Court cannot make such a finding here.

. . . .

[T]he Appellate Division in Sprint Spectrum, L.P. v. Borough of Upper Saddle River, supra, clearly has sustained the kind of testimony based on drive-test that the Board utilized in determining that there was a service gap and that the instant site was an appropriate and particularly suitable site for addressing that gap. That exact kind of testimony was sustained in Saddle Riverin a situation where the Board refused to accept it. 352 N.J. Super. at 612. How much further should this Court sustain the drive-test testimony where the Board saw the expert and accepted his testimony as being persuasive? A simple reference to the normal deference to a Board's [sic] deprives this Court of any power to interfere with the Board's evidentiary choices. SeeN.J.S.A.40:55D-10, stating that the Board is responsible for the conduct of hearings.

Further, that such back up data as could be demanded in discovery in a civil proceeding is of no moment; the granting of such broad discovery rights in land use proceedings before boards would invite chaos. That such evidence is typically used by experts, and that plaintiff could have conducted its own drive-tests simply demonstrated the strength of the Board's determination on the record not to require such back up -- as noted above, the record demonstrates that plaintiff could easily have replicated the drive-test.

On the day the present appeal was argued, the Supreme Court coincidentally decided Davis v. Brickman Landscaping, Ltd., 219 N.J. 395 (2014). Davis restated our net opinion rule, which requires that the expert "give the why and wherefore that supports the opinion, rather than a mere conclusion." Id. at 410 (internal quotation marks omitted).

When plaintiff's attorney asked Joseph to produce the drive-test data, counsel for AT&T objected. The Board attorney noted that the Board did not request the data and declined to order its production. The Board suggested that plaintiff could produce her own expert to testify as to the "flaws" in Joseph's presentation. Plaintiff acknowledged through the testimony of her expert, Menkes, that drive-test data is private information and there is no obligation to share it.

N.J.S.A. 40:55D-10(e) provides that at Board hearings "[t]echnical rules of evidence shall not be applicable to the hearing, but the agency may exclude irrelevant, immaterial or unduly repetitious evidence." The Board "'has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal.'" Kramer v. Bd. of Adjustment of Sea Girt, 45 N.J. 268, 288 (1965) (quoting Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div.), certif. denied, 32 N.J. 347 (1960)). We defer to the Board's broad discretion and reverse only if arbitrary, capricious, or unreasonable. Bressman, supra, 131 N.J. at 529.

In her brief, plaintiff discusses Nextel of New York, Inc. v. Borough of Englewood Cliffs Board of Adjustment, 361 N.J. Super. 22 (App. Div. 2003), as an example of a zoning board rejecting an expert's testimony because it was a net opinion without adequate support or was conclusory. In Nextel, the applicant's expert "had no report or evidence to support his conclusion, nor did he provide any specific test data or perform an analysis[.]" Id. at 31. He also

offered no specific information regarding the nature of the [coverage] gap, nor did he present an analysis based upon factual data. He avoided the Board's questions regarding the possibility of altering existing antennas so that plaintiff could locate its antennas on the municipal tower within the proper zone, notwithstanding his testimony that plaintiff regularly made adjustments to account for the effects of new antenna sites. Moreover, the Board's resolution set forth its reasons for rejecting Mughal's testimony.

[Id. at 42-43.]

The Board denied the applicant's variance request, the Law Division affirmed, and we agreed, concluding

An expert opinion must be supported by facts or data either in the record or of a type usually relied on by experts in the field. N.J.R.E. 703. An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded. See generally Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). "Opinions that lack a foundation are worthless. However, if an expert provides the whys and wherefores rather than bare conclusions it is not considered a net opinion." Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002) (citations omitted). [The trial judge] concluded that the Board had sufficient reasons for rejecting [the expert]'s testimony on suitability. He also found that, based on his review of the record, [the expert]'s testimony was not competent because it amounted to a net opinion. This finding is unassailable.

[Id. at 43.]

We find Nextel distinguishable. Joseph submitted three RF propagation map overlays based on the drive-test data to the Board, which demonstrated the current reliable service and the areas with a gap in coverage, the increase in coverage that the proposed tower would provide, and the potential coverage from an alternate location. He testified that the drive-test data provides a "very accurate representation of the coverage[]" and that he reviewed all of the drive-test data and confirmed their accuracy. Joseph based his testimony on evidence in the record, illustrated by the coverage maps.

Further, the evidence presented is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]" N.J.R.E. 703. "Similar computer-generated propagation studies have been accepted as evidence of wireless communications coverage levels in federal court." Upper Saddle River, supra, 352 N.J. Super. at 611. In Sprint Spectrum, L.P. v. Zoning Board of Adjustment of Leonia, 360 N.J. Super. 373, 389 (App. Div. 2003), we approved of the method of demonstrating the existence of a coverage gap through drive-test data and propagation maps as "accurate and accepted in the industry." Ibid. There was nothing arbitrary, capricious, or unreasonable in the Board's decision to accept Joseph's testimony based on the maps.

We also reject plaintiff's argument that the Law Division erred in applying Upper Saddle River. In Upper Saddle River, the Zoning Board hired its own RF expert for a wireless communications tower application, who testified at the hearing. 352 N.J. Super.at 586. At the Board's request, the applicant provided the Board's expert with "actual graphs of the drive-test data," which the expert reviewed. Id.at 587. The Board "expressed alarm that [the expert] had not looked at the 'raw data.'" Ibid. The expert responded that "[s]uch a project would be very difficult, if not pragmatically impossible. He repeatedly insisted that it was impossible to get the information the Board was requesting." Id.at 588. The Board denied the application, concluding that the carrier "had failed to provide the information needed to permit the Board and its consultant to properly evaluate the level of service within the Borough." Id.at 592. We reversed, concluding that "the Board's insistence that it be presented with 'raw data' was patently unreasonable." Id.at 612.

Plaintiff argues that the Law Division erred in interpreting Upper Saddle River, claiming that in that case the applicant's expert "provided the raw data supporting his opinion to the Upper Saddle River zoning board's expert." In Upper Saddle River, however, the applicant provided computer-generated graphs that contained the raw data, and the Board's expert only reviewed the graphs and not the raw data. Id.at 587-88. Thus, in Upper Saddle River we did not hold that an applicant must provide raw drive-test data to the Board or the opposition. Joseph's testimony is acceptable for the numerous reasons listed previously.

We note that the Board "'has the choice of accepting or rejecting the testimony of witnesses. Where reasonably made, such choice is conclusive on appeal.'" Kramer, supra, 45 N.J. at 288 (quoting Reinauer Realty, supra, 59 N.J. Super. at 201). We thus defer to the Board's discretion regarding Joseph's testimony and conclude that plaintiff has failed to demonstrate that the decision here was arbitrary, capricious, or unreasonable.

Affirmed.

1 The court consolidated the case with another cell tower case, Gaelic Communications, LLC v. Combined Planning Board/Zoning Board of Adjustment of the Borough of Milford, No. L-496-12 (Law Div. May, 2013) for purposes of the written opinion. We have concurrently issued today our separate opinion in the appeals in Gaelic (A-5136-12 and A-5170-12), which were argued back-to-back with the present appeal.

2 In a drive-test study, a specially equipped vehicle travels the major highways in an area scanning signal strength through a specified frequency range. Measurements are obtained by using a custom-designed cellular handset which transmits data to a computer which is connected to a GPS positioning system. The measurements are then processed by proprietary computer programs which combine them with local terrain data to produce a plot or 'propagation study' of the radio-frequency coverage within the area.

[Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Bd. of Adjustment, 352 N.J. Super. 575, 584-85 (App. Div.) certif. denied, 174 N.J. 543 (2002).]

3 Highlands Water Protection and Planning Act, N.J.S.A. 13:20-1 to -35.