T-MOBILE NORTHEAST LLC v. BOROUGH OF MENDHAM ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

T-MOBILE NORTHEAST, LLC, and

NEW YORK SMSA LIMITED

PARTNERSHIP, a New York

Limited Partnership, d/b/a

Verizon Wireless,

Plaintiffs-Appellants,

v.

BOROUGH OF MENDHAM ZONING

BOARD OF ADJUSTMENT,

Defendant-Respondent.

_____________________________

IRVING ISKO,

Defendant/Intervenor-

Respondent.

_____________________________

February 16, 2016

 

Argued April 13, 2015 Decided

Before Judges Espinosa, St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2719-10.

Richard L. Schneider argued the cause for appellant (Vogel, Chait, Collins & Schneider, attorneys; Mr. Schneider, of counsel and on the briefs; David H. Soloway, on the briefs).

Thomas J. Germinario argued the cause for respondent Borough of Mendham Zoning Board of Adjustment.

Robert F. Simon submitted a brief for respondent Irving Isko1 (Herold Law, P.A., attorneys; Mr. Simon, of counsel and on the brief; Anand Dash, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Plaintiffs T-Mobile Northeast, LLC and New York SMSA Limited Partnership d/b/a Verizon Wireless sought a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3) for a wireless telecommunications (WT) facility in the East Business District of the Borough of Mendham. The Board of Adjustment acknowledged that "a gap in appropriate design coverage exists and the proposed facility is located to address that deficiency." The location was on a property shared by a shopping center, anchored by Kings Supermarket, in the front portion and the Mendham Health and Racquet Club (health club) at the back of the property, adjacent to wetlands and wetlands transition areas. The variance at issue was from a requirement in the ordinance that a WT facility be located in the rear yard of property. Although the proposed placement was behind the loading dock of the supermarket, and therefore in the rear yard of the shopping center, the WT facility would not be in the rear yard of the health club. The Board denied the application, finding plaintiffs' inability to comply with that condition rendered "it unsuitable for this Conditional Use." The Board's decision was affirmed by the trial court. We reverse and direct the Board of Adjustment to grant plaintiffs' application for a conditional use variance.

I.

A zoning board's authority to regulate "the placement, construction, and modification of personal wireless service facilities" is limited by the Telecommunications Act of 1996 (TCA), 47 U.S.C.A. 332(c)(7)(B). This section of the TCA provides, in relevant part, that such regulation "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C.A. 332(c)(7)(B)(i)(II).

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, imposes requirements upon boards of adjustment similar to those contained in the TCA, see Smart Smr v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 326 (1998), including requirements that decisions be reduced to writing and supported by substantial evidence. Ibid.; see 47 U.S.C.A. 332(c)(7)(B); N.J.S.A. 40:55D-10(g).

Plaintiffs are licensed by the Federal Communications Commission (FCC) to provide wireless telephone services to the Borough of Mendham and the surrounding geographical area. In September 2007, plaintiffs filed a joint application for approval of a wireless communications facility consisting of a 120-foot flagpole near an apothecary in the Kings Shopping Center.

The WT facility was a communications tower designed as a flagpole, with all proposed antennas contained within it. The supporting equipment would be located at the base. T-Mobile's equipment was to be contained in three radio cabinets located on a 5' by 20' concrete pad and Verizon Wireless planned an 11'6" by 30' equipment shelter. The facility would be contained in a compound approximately 50' by 36' that was enclosed by a 6' chain link fence with vinyl privacy slats.

In May 2008, before the first public hearing was held on plaintiffs' application, the Borough adopted Ordinance No. 4-08, to comprehensively regulate WT facilities "as permitted and subject to the limitations of" the TCA. The stated purposes for the ordinance included: advance the goals and objectives of the Master Plan; prevent or mitigate "adverse visual impacts" from WT facilities; minimize the total number and height of WT towers, and "eliminate safety hazards associated with wireless telecommunications towers and other facilities, including but not limited to, attractive nuisances and risks of falling ice and other objects."

The ordinance identified locations where WT facilities were conditionally permitted and prioritized locations at which a new WT facility could be sited in this order: first, on municipally owned properties; second, in the East Business District; and third, at the high school and other public and private educational institutional sites in the 3-acre and 5-acre residence zones. WT facilities were expressly prohibited in Historic Business and Historic Overlay Zones and all residential zones. Among the conditions established were that new towers be of a monopole or flagpole design with a maximum tower height of 120 feet, and a requirement that "WT towers shall only be located within the rear yard of developed lots or within the rear half of the building envelope for undeveloped lots."2

Plaintiffs' initial application3 complied with the 120-foot maximum height, but required a variance from a setback condition. Changes were made to the application in response to the Board's requests that the facility be relocated to an area directly behind the Kings loading dock and that the height of the monopole be increased to 130 feet. As modified, the application did not comply with the rear yard and maximum height conditions of the ordinance and therefore required a "special reasons" variance.

The MLUL grants boards of adjustment the authority to grant "special reasons" variances, which include use variances, N.J.S.A. 40:55D-70(d)(1), and conditional use variances. N.J.S.A. 40:55D-70(d)(3). An applicant for either must present proof of both positive and negative criteria. Sica v. Bd. of Adjustment, 127 N.J. 152, 155-56 (1992). To satisfy the positive criteria, the applicant must establish "special reasons" for the grant of the variance. Id. at 156. To satisfy the negative criteria, it must be shown that the variance "can be granted without substantial detriment to the public good and that it will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Ibid.; see also Price v. Himeji, 214 N.J. 263, 286 (2013).

Because the proposed facility was permitted as a conditional use by the ordinance in the East Business District, the application did not require a variance under N.J.S.A. 40:55D-70(d)(1), but only a conditional use variance under N.J.S.A. 40:55D-70(d)(3). In Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285, 287 (1994), the Supreme Court explained the difference between use variances and conditional use variances

A use variance allows the applicant to engage in a prohibited use: It is the use that violates the ordinance. A variance for a deviation from a condition allows the applicant to engage in a conditional use despite the applicant's failure to meet one or more of the conditions: It is not the use but the non-compliance with the conditions that violates the ordinance.

[Coventry Square, supra, 138 N.J. 285, 287.]

This distinction was reflected in the standards Coventry Square established for granting a conditional use variance which, the Court stated, should not be subject to the more stringent special reasons standard applicable to a commercial-use variance. Ibid. (citing Medici v. BPR Co., 107 N.J. 1, 9-18 (1987)).

When the proposed use is "inherently beneficial," the positive criteria are presumptively met and the "grant of the variance depends on balancing the positive and negative criteria." Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323-24 (1998). Although our Supreme Court declined to recognize all telecommunications facilities as inherently beneficial uses nearly twenty years ago, it suggested that question might be resolved differently if revisited in the future. Id. at 329. However, even in considering the denial of a use variance for a monopole like that in this case, the Court applied the Sica balancing test applicable to inherently beneficial uses, id. at 331-34, and stated, "Generally, the issuance of an FCC license should suffice for a carrier to establish that the use serves the general welfare." Id. at 336.4 We have held that the positive criteria are satisfied where a cellphone carrier is licensed by the FCC and provides credible testimony establishing that a coverage gap exists. See N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 340 (App. Div. 2004) (reviewing denial of a use variance).

In Coventry Square, supra, 138 N.J. at 299, the Court described the board's task as to each of the two prongs of the negative criteria and instructed that, when a conditional use variance is considered, the negative criteria is assessed in terms of the impact of the deviation, not the impact of the use. See also Cox & Koenig, New Jersery Zoning & Land Use Administration 736 (2015).

The first prong to be satisfied is "that the variance can be granted 'without substantial detriment to the public good.'" Coventry Square, supra, 138 N.J. at 299 (citing N.J.S.A. 40:55D-70). The "focus is on the effect on surrounding properties of the grant of the variance for the specific deviations from the conditions imposed by ordinance." Ibid. (emphasis added). The board is required to "evaluate the impact of the proposed [conditional-] use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute 'substantial detriment to the public good.'" Ibid.

The second prong of the negative criteria requires proof "that the variance will not 'substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Id. at 299 (quoting N.J.S.A. 40:55D-70(d)). For this prong to be met, "the board of adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district." Ibid.

II

Twenty-two public hearings were conducted on plaintiffs' application. Plaintiffs presented the expert testimony of radio frequency expert Glenn Pierson, the site plan engineer Robert Foley, and a professional planner Timothy Kronk.5

Pierson demonstrated the existence of a gap in coverage and testified that approximately 95% of the gap area would be eliminated by the proposed facility. Ronald Graiff, a radio frequency expert retained by intervenor Irving Isko, disputed this conclusion. However, the Board's expert, Dr. Bruce A. Eisenstein, rejected Graiff's opinion. Eisenstein agreed with Pierson's methodology and concurred with Pierson's analysis and conclusions. In his report, Eisenstein concluded there was a gap in coverage, and the proposed facility: "will ameliorate the gap to the greatest extent possible"; is "at the minimum height possible to achieve this amelioration"; and will be "in full compliance with all FCC regulations."

Pierson addressed the availability of locations for the tower in light of the priorities set by the ordinance. The East Business District where the WT facility would be located was second only to municipally-owned properties in priorities. Pierson testified that the municipally-owned properties were not options; the borough attorney had advised that no municipal location would be made available to plaintiffs. Pierson also explained the Borough Fire Department would not be a viable site for the new tower because hills in the area would obstruct coverage to the southeast.

Foley testified as to the operational issues associated with the WT facility. Only limited utilities were required -- electric, telephone, and a natural gas line. Foley stated there would be a remote alarm in case of any issues and that a technician would come to the site every four to six weeks for routine maintenance.

Foley also addressed the feasibility of placing the WT facility to the rear of the health club. Foley testified that location could not be utilized because it was encumbered by wetlands and related transition areas.6

Kronk, plaintiffs' professional planning expert, conducted a series of "balloon tests" to analyze the visual impact of the facility. In these tests, a balloon is flown to the height of the proposed tower and a computer simulation is then prepared visually depicting the proposed wireless communication facility at that height. Kronk stated the proposed flagpole design was the least visually intrusive design and that tests performed in April and August indicated the flagpole would not be visible to residents in the area that abutted the health club.

Kronk opined that the application met the test for a conditional use variance under the Coventry Square analysis. He concluded the application satisfied the positive criteria because the property was still a suitable site for the facility notwithstanding the single deviation from the ordinance requirements. In terms of negative criteria, he concluded the grant of the variance would not create any substantial detriment to the public good.

Isko presented the testimony of a professional planner, George Ritter, in opposition to the application. Ritter opined that alternative sites would have less visual impact. Addressing the positive and negative criteria for the application, Ritter questioned the sufficiency of the proof that there was a need for the WT facility to satisfy the positive criteria. He also stated the application generated "many of the negative criteria" of concern, emphasizing the impact on the visual quality of the area. He concluded that granting the variance "would not serve any useful public purpose."

After rendering his opinion, Ritter answered questions. In response to a question from a board member about safety hazards, Ritter stated

Well, obviously where it's being located is a very public space. There will be people parking around it, there will be trucks traveling around it. There may very well be people walking around it, to and from their cars and to various activities.

Obviously relocating in a more remote area, in an area that is not in such a public area, would help reduce the potential for any safety issues.

. . . .

I don't know of any issues with difficulties of falling ice or problems with that going beyond the actual areas themselves. But, clearly, by locating it in such a public space, if those types of things were to happen, you're putting them in an area where there's a lot of public.

Clearly, if you want to minimize that, you'd put it in an area where it was in less of a publicly occupied or used area. That's really the only answer I can give you to that.

[Emphasis added.]

The Board also took comments and questions from local residents. Frank Lupo spoke on behalf of himself and concerned neighbors. Lupo presented news stories to the Board reporting on cellphone towers that had fallen. He also expressed concern about falling ice. In support of that contention, Lupo provided the Board with an opinion from the Eighth Circuit that affirmed a zoning board's denial of a WT provider's application for a monopole cellular tower. USCOC of Greater Iowa, Inc. v. Zoning Bd. of Adjustment of Des Moines, 465 F.3d 817 (8th Cir. 2006).

III.

The Board denied the application by resolution on July 7, 2010. The resolution described the property as 13.65 acres, located on the northerly side of East Main Street, and extending northerly to a depth of 1,198 feet. The Kings Shopping Center, consisting of the supermarket in a 27,504 square foot building and two other buildings offering retail services, is situated on the first 750 feet of the property. Behind the shopping center, the health club sits on the rear 450 feet of the property.

The resolution memorialized two modifications to the application made at the Board's request. The Board requested the relocation of the monopole to an area "adjacent to the semi-landscaped parking median" to the rear of the supermarket and in front of the health club. This request was made "in an effort to avoid interference with the use of parking lot aisles, parking spaces and with customer foot traffic." The Board also requested an increase of the height of the monopole to 130 feet, which furthered the goal of the ordinance to minimize the total number of WT towers in the Borough by encouraging other providers to "collocate" on the proposed tower.

The Board began its findings with a review of the testimony and evidence presented. The Board then made two findings relevant to the positive criteria: (1) "a gap in appropriate design coverage exists and the proposed facility is located to address that deficiency," and (2) "the applicants are both FCC licensed carriers." We recite the remaining findings and determination verbatim

22. The Board has considered that the Borough has declined to make the Police Station property available to the applicants for installation of a [WT] facility.

23. The Board is aware that numerous parties have objection to the visibility of a monopole at this location. The Board has attempted to balance that objection with the imputed knowledge that the Planning Board and the Governing Body would have understood that at least a portion of any permitted 120 foot monopole in the East Business District would be visible from the Main Street Corridor and various historically relevant locations in the Borough.

24. The Board does, however, find that the combined uses of the King's Shopping Center and the Mendham Health & Racquet Club on this one property do render it the busiest public use property in the Borough. . . .

25. The Board interprets the Rear Yard Condition to address a dual zoning and planning purpose: A] assistance with the goal of visual screening by having a WT facility behind a building; and, B] removal of a WT facility from the busiest pedestrian use areas of a property by having it in the rear yard.

WHEREAS, the Board has determined that the Use Variance and related Site Plan Approval requested by the Applicants, OMNIPOINT COMMUNICATIONS, INC. and NEW YORK SMSA PARTNERSHIP d/b/a VERIZON WIRELESS, cannot be granted without substantial detriment to the public good or without substantially impairing the intent and purpose of the Zone Plan and Zoning Ordinance of the Borough of Mendham for the following reasons

1. After considering all of the factual testimony, expert testimony, and expert opinion and after reviewing and analyzing all of the Exhibits, the Board finds that the inability to comply with the Rear Yard Condition due to the unique and expansive development of the Kings[/]Health Club property renders it unsuitable for this Conditional Use.

2. After considering all of the factual testimony, expert testimony, and expert opinion and after reviewing and analyzing all of the Exhibits, the Board concludes that there are no available conditions or alternatives that it might suggest or impose to ameliorate the degree and impact of the deviation from the Rear Yard Condition.

3. The Board interprets the recent amendments to the Borough Zone Plan to indicate the legislative intent that the [WT] Facilities are now permitted Conditional Uses in the East Business District. The Board however, finds that the unique facts of this property render it inappropriate to accommodate this additional use.

4. The Board acknowledges that it requested consideration of the 130 foot monopole height and confirms that is not a basis for this negative decision.

Plaintiffs filed a complaint in lieu of prerogative writ to challenge this decision. The trial court found the Board's determination in denying the rear yard variance was not arbitrary, capricious, or unreasonable.

In a supplemental order issued on August 10, 2011, the trial court remanded the matter to the Board to consider the suitability of alternative locations on the property. Plaintiffs provided additional testimony from Foley, their site plan engineer, regarding his efforts to determine the possibility of obtaining the Department of Environmental Protection permit necessary for construction in any suggested rear yard location. Foley advised the Board that a site plan was approved in 2001 for the addition of nine parking spaces in the rear area. Because the site plan involved disturbing the wetlands, a permit was required but not obtained in conjunction with the site plan approval. Foley testified that plaintiffs would not be able to get a wetlands redevelopment permit for the WT tower because the area in question had been unlawfully disturbed in 2001. The Board reported back to the court that alternative sites in the rear yard were not feasible and the trial court entered the final order from which plaintiffs appeal.

IV.

Plaintiffs argue they satisfied the statutory conditions for the issuance of a conditional use variance. They contend the Board's denial of their application was arbitrary, capricious and unreasonable because the resolution is legally insufficient and, further, because the Board improperly concluded that the extensive development on the property was a valid basis for denying the application. The Board argues that the application was properly denied because plaintiffs failed to satisfy both the positive and negative criteria required.7

A board of adjustment's decision to grant or deny a variance is deemed "presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable." Sica, supra, 127 N.J. at 166-67. We review the decision to determine whether the board's decision is "supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart, supra, 152 N.J. at 327. "[W]hile we will give substantial deference to findings of fact, it is essential that the board's actions be grounded in evidence in the record." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). "By the same token, although we construe the governing ordinance de novo, we recognize the board's knowledge of local circumstances and accord deference to its interpretation." Ibid.

Like the TCA, N.J.S.A. 40:55D-10(g) requires a municipal agency to memorialize its decision on an application in a resolution that sets forth its "findings of fact and conclusions based thereon." See 47 U.S.C.A. 332(c)(7)(B)(iii). The findings of fact must be sufficient "based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the applicant's variance request in accordance with the statute and in light of the municipality's master plan and zoning ordinances." N.Y. SMSA, supra, 370 N.J. Super. at 333. "[M]ere recital of testimony or conclusory statements couched in statutory language" is insufficient, id. at 332-33, and zoning boards must "root their findings in substantiated proofs rather than unsupported allegations." Cell S. of N.J. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 88 (2002). Moreover, we have observed, "The necessity of a resolution that clearly states the reasons for a board's decision on a variance request is especially compelling in the context of a wireless communications site application." N.Y. SMSA, supra, 370 N.J. Super. at 334.

A.

As the Board acknowledged in its resolution, plaintiffs are licensed by the FCC and a coverage gap exists that would be ameliorated by a WT facility at the proposed location. These facts provide grounds for the conclusion that the positive criteria were satisfied. See Id. at 340.

When a use variance is sought, the applicant must demonstrate that the "use promotes the general welfare because the proposed site is particularly suitable for the proposed use" to satisfy the positive criteria. Medici, supra, 107 N.J. at 4.8 "However, where, as here, the applicant seeks a conditional use variance, the focus is on the continued appropriateness of the proposed site (because that use is already permitted) and not whether the site is 'particularly suited for the proposed use.'" Cell S., supra, 172 N.J. at 84-85 (emphasis omitted) (quoting Medici, supra, 107 N.J. at 4); see also Coventry Square, supra, 138 N.J. at 298 ("Proofs to support a conditional-use variance need only justify the municipality's continued permission for a use notwithstanding a deviation from one or more conditions of the ordinance.")

In this case, the East Business District was identified by the Borough as a site where WT facilities were conditionally permitted in the ordinance adopted while plaintiffs' application was pending. Although the resolution makes conclusory statements that the "unique" qualities of the property render it unsuitable, the resolution is devoid of any factual findings to support the conclusion that the property does not continue to be appropriate. And, the record includes no qualified expert testimony to support that conclusion. We therefore conclude that plaintiffs satisfied the positive criteria.

B.

Turning to the negative criteria, N.J.S.A. 40:55D-70d provides

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

This section "substantially codifies" the balancing test set forth in Sica, supra, 127 N.J. at 164-66, a use variance case, for all special reasons variances. Smart, supra, 152 N.J. at 324.

The first prong of the criteria is "that the variance can be granted 'without substantial detriment to the public good.'" Coventry Square, supra, 138 N.J. at 299 (citing N.J.S.A. 40:55D-70). The detriment to the public good is measured by the impact of the deviation on the properties neighboring the site where the WT monopole is proposed. Ibid. Here, this requires an evaluation of the impact of placing the monopole in front of the health club "upon the adjacent properties and [a determination] whether or not it will cause such damage to the character of the neighborhood as to constitute 'substantial detriment to the public good.'" Ibid.

The resolution contains no findings as to the impact of the deviation from the rear yard condition upon any adjacent properties. There is no finding that this deviation will damage the character of the neighborhood, let alone that such damage would rise to the level of a "substantial detriment to the public good." Moreover, the record lacks qualified expert testimony to support a finding that the conditional use variance sought would have an adverse effect on adjacent properties. See Smart, supra, 152 N.J. at 336 ("Proof of an adverse effect on adjacent properties and on the municipal land use plan . . . generally will require qualified expert testimony.")

The only finding that relates to an impact beyond the property line is the reference to complaints about the visibility of the monopole at this location. This finding does not undermine plaintiffs' proofs regarding the negative criteria. First, objections regarding visibility are generalized in nature rather than proof of the impact of a deviation from the rear yard condition. Second, the Board itself discounted these objections and did not rely upon them in denying the variance. As the Board noted in the resolution, its decision to permit a 120 foot monopole in the East Business District reflects an awareness and acceptance of the fact that at least a portion of the monopole would be visible. This finding therefore does not support any conclusion that the requested conditional use will result in "substantial detriment to the public good."

The resolution also includes the Board's interpretation of the purposes of the rear yard condition: to assist in "visual screening by having a WT facility behind a building" and "the removal of a WT facility from the busiest pedestrian use areas of a property by having it in the rear yard." No additional findings were made as to the degree these purposes were implemented or frustrated by the proposed site. However, we note that an entire shopping center would provide some screening of the WT tower and the location was in fact proposed by the Board "to avoid interference with the use of parking lot aisles, parking spaces and with customer foot traffic."

The second prong of the negative criteria requires proof "that the variance will not 'substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Coventry Square, supra, 138 N.J. at 299 (quoting N.J.S.A. 40:55D-70(d)). The resolution addresses this prong in unacceptably conclusory language. See N.Y. SMSA, supra, 370 N.J. Super. at 332-33. Although the resolution states this conclusion is reached "for the following reasons," none of the reasons identify any aspect of the zone plan or zoning ordinance that will be impaired by granting the variance. To the contrary, the resolution states the amendments to the zoning plan "indicate the legislative intent that [WT] Facilities are now permitted Conditional Uses in the East Business District." The stated reasons relate only to rather vaguely described aspects of the property in question, i.e., "the unique and expansive development of the Kings[/]Health Club property" and "the unique facts of this property," which "render it inappropriate to accommodate this additional use."9 Without any findings to support these conclusions, they are inadequate. See Cell S., supra, 172 N.J. at 84-87 (finding the record demonstrated the proposed site continued to be an appropriate site for a cell tower, despite its height, where the board of adjustment "made no specific findings regarding the effect of the 152-foot tower on Comcast's existing site"); see also New York SMSA, supra, 370 N.J. Super. at 340 (finding the denial of Verizon Wireless's application for a d(1) use variance arbitrary, capricious and unreasonable where there were no findings of negative factors).

Finally, although the resolution lacks any findings that the location of the WT tower posed a safety hazard, the Board contends that its denial of the application should be supported on this ground. This argument lacks merit.

The only support for the proposition that the WT tower posed a safety hazard is the testimony given by Isko's expert, Ritter, in response to a question and that presented by Lupo. N.J.S.A. 40:55D-10(g) requires a municipal agency to memorialize its findings of fact and conclusions in a resolution. That requirement cannot be met, in the absence of such findings, by reliance upon the comments of board members during the course of a hearing, N.Y. SMSA, supra, 370 N.J. Super. at 332-34, let alone the testimony of witnesses that are not the subject of a finding.

Even if the Board's findings could be interpreted to include its concern regarding a safety hazard, the record is insufficient to support such a finding. Ritter's comments do not rise above the level of a net opinion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011).

The only other testimony regarding safety hazards came from Lupo. The news stories he submitted cannot be considered more than anecdotal; they are not a substitute for qualified expert testimony and would not support a finding that this particular WT tower at the proposed location poses the same risk. Lupo also cited the Court of Appeals decision in USCOC to support the contention that falling ice is a hazard that will warrant the denial of an application. However, that case is both factually and legally distinguishable.

First, the WT tower under consideration in USCOC had antenna arrays extending from the monopole upon which ice could form. USCOC, supra, 465 F.3d at 823. Here, the antennas would be contained within the flagpole design.

In addition, the legal standard and its application was different in USCOC. Unlike the balancing of positive and negative criteria under the MLUL, the applicant in USCOC had to show that the failure to allow the variance would result in an "unnecessary hardship," which requires proof: the property owner has been deprived of all beneficial or productive use of the land; the plight of the owner is due to unique circumstances not of the owner's own making; and the proposed use will not alter the essential character of the locality of the land. Id. at 824. Finally, the Court of Appeals concluded that the record, which relied upon the speculation of interested witnesses, satisfied the "substantial evidence" test to warrant deference "without the necessity of additional expert testimony." Id. at 823. Under similar circumstances, our courts have concluded that a board's reliance upon unsupported resident testimony and the absence of qualified expert testimony to prove an adverse effect render a board's decision arbitrary, capricious and unreasonable. See Cell S., supra, 172 N.J. at 88; Smart, supra, 152 N.J. at 331-32; N.Y. SMSA, supra, 370 N.J. Super. at 338.

In sum, plaintiffs' application plainly satisfied the positive criteria. As to the negative criteria, the Board's findings failed to address the impact of the deviation from the rear yard requirement on adjacent properties and also made no findings that the variance would impair any aspect of the zone plan or ordinance. The record is insufficient to support a finding that the variance should be denied to avoid the danger of falling ice or any other safety hazard and, indeed, the Board included no such finding in its resolution. We therefore conclude the Board's denial of the conditional use variance was arbitrary, capricious and unreasonable.

We reverse the trial court's order. Plaintiffs' application for a conditional use variance is granted.

1 Counsel advised the court prior to oral argument that Intervenor Irving Isko had passed away and that his estate would no longer be participating in this action and instead, would rely upon the arguments made by the Board of Adjustment.

2 The ordinance defines "rear yard" as "a space extending across the full width of a lot between the rear lot line and the nearest part of any building on the lot. Stoops, steps, terraces and balconies projecting not more than 60 inches from a building shall not be construed as part of the building unless such projections are roofed."

3 Plaintiffs amended their application after the adoption of the ordinance because the original application did not comply with setback requirements.

4 In Smart, supra, the Court observed that "[a] telecommunications facility is a paradigm for a use that serves a greater community than the particular municipality." 152 N.J. at 332.

5 Plaintiffs also presented the testimony of radio frequency emissions compliance expert Dan Collins. The TCA preempts local regulation of electromagnetic field radiation emissions, so long as those emissions comply with applicable regulations. Smart, supra, 152 N.J. at 326. It has been observed that 47 U.S.C.A. 332(c)(7)(B)(iv) reflects the determination by Congress "that facilities that comply with applicable Federal Communications Commission ("FCC") regulations do not pose a health risk and cannot be a basis for denying a permit." Seattle SMSA Ltd., P'ship v. San Juan Cnty., 88 F. Supp. 2d 1128, 1131 (W.D. Wash. 1997).

6 Nonetheless, before the final vote on the application, the Board asked plaintiffs to amend their plans again to relocate the facility to the rear yard of the health club. Plaintiffs declined.

7 In the alternative, the Board argues that arguments raised by Isko are sufficient to warrant the denial of the application. We have reviewed the arguments advanced by Isko in light of applicable legal principles and the record and conclude that none of them warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

8 Even within the context of a use variance, the "particularly suited" issue implies "special considerations when the proposed use is a telecommunications system," Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 523 (App. Div.), certif. denied, 175 N.J. 75 (2002), which include the TCA's provisions that preclude local regulation that has "the effect of prohibiting the provision of personal wireless services." 47 U.S.C.A. 332(c)(7)(B)(i)(II) see also Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 388-89 (App. Div. 2003).

9 To the extent that these findings suggest that the property is overdeveloped, and that is only a suggestion, we note that the ordinance, which was adopted at the time the application was pending, explicitly provides for WT facilities to be situated on property with more than one principal use.