NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS v. TOWNSHIP OF EAST AMWELL BOARD OF ADJUSTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0462-04T30462-04T3

NEW YORK SMSA LIMITED

PARTNERSHIP d/b/a

VERIZON WIRELESS,

Plaintiff-Appellant,

v.

TOWNSHIP OF EAST AMWELL

BOARD OF ADJUSTMENT,

Defendant-Respondent.

 

Argued October 12, 2005 - Decided

Before Judges Conley, Winkelstein and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, WRN-L-0235-04.

Gregory J. Czura argued the cause for appellant (Czura Stilwell, attorneys; Mr. Czura, on the brief).

Trishka Waterbury argued the cause for respondent (Mason, Griffin & Pierson, attorneys; Ms. Waterbury, of counsel and on the brief).

PER CURIAM

The issue in this appeal is whether defendant, East Amwell Board of Adjustment (Board), arbitrarily denied the application of plaintiff, New York SMSA Limited Partnership d/b/a Verizon Wireless (Verizon), to construct telecommunication facilities on property located in the Township's agricultural district. The Law Division, having agreed with the Board, dismissed plaintiff's complaint in lieu of prerogative writs challenging the Board's decision. We reverse.

I.

Verizon Wireless is licensed by the Federal Communications Commission (FCC) to provide cellular communications services. Verizon applied to the Board for a conditional use variance to construct a silo-type cellular tower on property located at 186 Old York Road. The property is located along the northwestern edge of the Township, across Old York Road from the Township's border with Raritan Township. North of the property is the Reaville Historic District, a designated State and National historic district. Also near the property is a preserved farmstead that has been nominated by the Township's Historic Preservation Commission for designation as a rural historic district.

The property is 74.083 acres in area located in the Township's agricultural district; all but 2.427 acres (exception area) are deed restricted against uses other than agricultural. Telecommunications facilities are conditional uses in the district. At the time of Verizon's application, the exception area already contained multiple silos, a twelve by twenty foot equipment shelter, a fenced equipment area, a garage, nine or more barns/sheds, and a farmhouse.

Verizon initially applied to place a monopole on the site. After the State Historic Preservation Office (SHPO) issued a negative declaration against the monopole, Verizon amended its application and instead proposed to construct a cellular silo. The silo was proposed to be 120 feet high, and located 20 feet from the west side of the property, within 1100 feet of the Reaville Historic District.

The facility required three variances: one for setback, a second for height, and a third for separation distance from the historic district. See N.J.S.A. 40:55D-70d(3). More specifically, the zoning ordinance provides that a wireless communications tower shall contain a minimum setback of 200 feet, or two times the height of the tower, whichever is greater. Verizon has proposed a twenty foot setback. Maximum tower height is limited to 120 feet for multiple vendors, and 100 feet for a tower servicing a single vendor. Here, because Verizon was deemed by the Board to be a single vendor, a twenty-foot height variance was required. Finally, cell towers may not be erected within 2500 feet of any historic district. The proposed facility here will be approximately 1100 feet from the Reaville Historic District.

The Board heard Verizon's application over five hearings, from December 10, 2002 through June 10, 2003. On the latter date, the Board unanimously denied Verizon's application and memorialized its decision in a resolution on July 24, 2003.

Because the appeal requires a fact-sensitive analysis, we review the evidence in some detail. Verizon presented the testimony of a number of experts in support of its application. Danny Dichter, a radio frequency engineer, testified that Verizon is licensed by the FCC. To describe the need for a wireless communications facility at the subject site, Dichter reviewed with the Board a computer propagation tool a map with overlays and various colored dots affixed identifying gaps in wireless service. The exhibit showed major roadways and existing areas that contained wireless communications equipment. Dichter pointed out other proposed locations that Verizon considered for placement of the facility but rejected them because they would not provide adequate coverage. Dichter testified:

Looking at this map, we have a significant gap in service on Old York Road spanning from Route 202 to the west all the way to the county border to the east. Additionally, we have gaps on the roads that connect to the northern portion of the township in East Amwell, on [Reaville] Road for three-quarters of a mile, a half mile on Barleysheaf, and a mile and-a-half coverage gap on Route 613. Additionally, we've got a mile and-a-half gap on Kool Road, which is in this section.

As for inside East Amwell Township, the roads, we've got two and-a-quarter gap in service on Manors Road, also known as . . . Route 609. We've got a mile and-a-half gap in coverage on Van Lou (ph) Road. Additionally, we have no service on Larison (ph) Road and Wasaluski (ph) Road in the northern portion of East Amwell township.

In responding to the question of a Board member who indicated that he did not experience gaps in coverage in some of those areas, Dichter replied:

There's a myriad of reasons why you might experience good call quality. One, we do design [our] system for peak usage for worst-case conditions; i.e., the summertime; i.e., the busy hour. That will have an impact on the system we utilize because of the technology Verizon uses. . . .

. . . .

The more users you have on the system, the more interference created to the system. We have now basically in East Amwell township is two sites. The sites are not creating a tremendous amount of interference in this area so it's possible to have a low signal level and still be able to maintain communications, especially during times when this system is not loaded or during winter months.

So when this system is fully mature, we're not losing calls in the northern portion of East Amwell township.

. . . .

We're at a point where . . . we do have data that indicates there are dropped calls. As a matter of fact, several members of the team tonight confirmed that driving around the area they did drop calls and they were driving around during the busy hour. They were driving around during 5:30 or 6:00, so that's rush hour when the system is really packed.

. . . .

And what this site does for us I mean, again, it's a 120-foot silo. It's located [at] 186 Old York Road. It's a site that provides coverage for us for three and-a-quarter miles on Route 514. It provides and fills the gap in service on several of the roads leading into East Amwell; namely, [Reaville] Road, Barleysheaf Road, and Kool Road; and in terms of the township, provides coverage on Manors Road as well [as] Van Lou (ph) Road and Larison (ph) Road heading into this road. . . .

At a subsequent meeting, Dichter explained in greater detail the testing Verizon performed to determine gaps in coverage. One test he described as a "details system baseline." That test was used to determine the "performance of [the] existing system." To conduct that test, a specially equipped car in the driving area collected information on the wireless system by using a cellular phone inside the car; the test measured the signal strength quality in the area based upon existing sites. Dichter testified the test was ninety to ninety-five percent accurate.

He described the second test, a "crane test," which was performed by elevating "a crane to prescribed heights with an antenna on top of the crane and we have a car drive around the area's prescribed roads collecting signals to determine the minimum height necessary." He explained that the car drove the area when the crane was raised to a height of 112 feet, which emulated a 120-foot silo, and a lower height, 92 feet, which reflected a 100-foot silo. He concluded that the 112-foot height, simulating the 120-foot silo, was the minimum height necessary to provide the required coverage. That was so because the terrain attenuated the signal on "the northern portion of Reaville Road as well as Old York Road." He said a 100-foot height would not be sufficient to cover the area.

Dichter was recalled a third time, to provide additional explanation to the Board concerning the drive test and the possibility of using alternative sites. He explained that the power lines located to the north of the subject property would not provide the required coverage due to the locale's topography. He also explained that a church steeple at 191 Old York Road in Reaville was not sufficient because it was not high enough; and, the topography of the road on which the church is located would result in inadequate signal strength.

The Board called its own radio frequency engineer, Charles Hecht, who substantially agreed with Dichter's findings and conclusions. He testified that Dichter's testimony was accurate. He said that the "application . . . appears to be reasonable because there is a large gap demonstrated by their computer propagation plots . . . [a technique] that the wireless industry employs." Hecht reviewed the materials Dichter provided, considered his calculations, and agreed with those calculations. He acknowledged that Dichter's analysis was accurate from a radio frequency and engineering point of view. Hecht testified that there was enough of a difference between a 92-foot test height and a 112-foot test height to affect how the system would operate. He explained:

It would work at the lesser height, but it wouldn't work as well. And as the number of users increases and if you like cell phones or not, I think I spoke to this at the previous meeting they are coming into the home and becoming the sole communication source for many homes and using them for data and 9-1-1 and E-9-1-1 service and other things. The coverage in the home does become the viable issue that we can't dismiss and having that 20 feet additional will increase that signal by a margin of six D.B.

The bottom line perhaps might be that if this would be marginal now, certainly it's going to become obsolete or go below the threshold of being practical in several years and they may have to come back to ask for something different rather than coming in forthright with the proposal.

Plaintiff presented a site analysis through the testimony of Robert Weible, Esquire, an employee of a site consulting group that had performed site acquisitions for Verizon and other carriers in New Jersey for approximately three years. Weible testified as to the unavailability of other sites. He said he examined the telecommunications equipment of existing carriers in the area, and found them to be insufficient to satisfy Verizon's need in the subject location. He examined a T-Mobile pole on Route 31, PSE&G lines in Raritan Township, four other silos already built in the area, and silos out of the area that did not fall within the historic district. For various reasons, primarily because of the height and/or location of the other facilities, they "did not fit within Verizon's objective" of the subject site.

After presenting Weible's testimony, Verizon called an architect, Lou Moglino, whose firm prepared the site plan. Moglino explained that Verizon first proposed a monopole because all existing silos were too short to meet the height requirements necessary to provide sufficient coverage. When SHPO rejected that proposal, Verizon proposed a "Stealth silo." The silo, manufactured by a company named Stealth, is used to house telecommunications equipment rather than to store agricultural products. Verizon proposed to place the silo next to an existing building, outside of a 100-foot radius of other carriers so as not to cause interference with their signals. The placement of the silo was also informed by the Farmland Preservation Easement on the property, and was therefore limited to the 2.4 acre exception area. Moglino described what the proposed silo would look like:

The silo itself, at the base of the silo, is going to be housing radio equipment. The overall diameter is 20 feet . . . , and it's 120 feet tall. The antennas would be located just below the dome of the silo. And inside will be 15 antennas, along with two GPS antennas with about five radio equipment cabinets down at the base. The closest distance of the silo to the western side of the property line will be 20 feet but it can be easily slid[] out to 28 feet to accommodate the silo setback requirements.

Moglino emphasized that the antennas and other telecommunications equipment would not be visible they would be concealed within the silo itself.

Following Moglino's testimony, Weible was recalled to discuss whether other telecommunications carriers could use the proposed facility. He explained that neither Sprint nor Nextel would move their equipment to the new silo; and neither AT&T nor T-Mobile were "looking to collocate within that tower." Nevertheless, he said the proposed facility remained a viable option to other carriers "if and when they do begin to expand into the market."

Because the proposed site was within 2500 feet of a historic district, Verizon presented the testimony of Nancy Zerbe, whom the Board accepted as qualified to testify concerning historic preservation in New Jersey. Zerbe, who previously worked for SHPO, testified that because historic districts were implicated in the application, her office worked with Verizon for design alternatives to the originally proposed monopole. The solution was the construction of a Stealth silo. She read a letter from SHPO dated December 4, 2002. It said:

In terms of the adverse effect, I concur with your assessment that the visual impact for the proposed telecommunications antennas located within a stealth silo does not have a level of adverse effect on the condition. Detailed plans for the silo are submitted to this office for review and approval and then the additional comments are what I referred to before. Anything that can be done to relocate existing telecommunications equipment at the site into the proposed silo would enhance the project. That's the record submitted to the State Preservation Office.

Zerbe also read part of a letter from the Hunterdon County Cultural Commission that said, in part, "your designed monopole and silo is excellent. Behooves us all to free the country side of adverse visual effects and your planning goes along with it."

In contrast to Zerbe's testimony, Lana English, the chair of the local Historic Preservation Committee, testified that while the Committee was not opposed to the project, it was opposed to the height of the silo. She testified that the height was problematic "because it sets precedent throughout the rest of our[,] what we hope to have[,] as our rural historic district that if someone builds a structure that looks like something that's agricultural that it can be as big as it wants to be." She noted that while the "silos fit within the setting of a farm . . . quite nicely," the "issue" that the Committee found troubling was "breaking the height barrier at one of the highest locations in the Township."

In further support of its application, Verizon called Trey Nemeth, the Vice-President of the manufacturer of Stealth silos. Nemeth was involved with the design, manufacture and installation of "thousands of wireless concealment sites." He explained that his company designed about "a half dozen free-standing silo projects similar to this one," which range in height from 80 to 120 feet. He said no silo structure designed by his company had failed "in any way from wind or any other kind of natural event." He considered the structures to be "very safe." He said "the concrete that's used in this application is essentially the identical material, construction technique, design as a traditional silo used for traditional purposes. We're just putting a concealment portion basically on the top of that."

William F. Masters, Jr., a licensed planner, addressed Verizon's request for variance relief. He testified of a need for the equipment within the municipality, and about the attempts that had been made to locate antennas on existing buildings or structures.

Masters discussed the positive and negative criteria Verizon was required to address to secure its approvals. First, he pointed out that based on case law, the FCC license held by Verizon was sufficient to establish that the cell tower use served the general welfare. He also explained that because the cell tower was permitted as a conditional use, Verizon was not required to demonstrate that the site was particularly suited for the proposed use. Instead, it was the applicant's burden to demonstrate "that the site remains particularly suited for the use in light of the deviation or the departure from the conditional use standards that [were] being sought."

Addressing the positive criteria, Masters explained:

With regard to the positive criteria, again, I mentioned that Verizon Wireless has obtained the license from the Federal Communications Commission. The site is a site that is particularly suited by virtue of the fact that it is situate in a zone district which conditionally permits wireless telecommunications facilities as a conditional use, the Amwell Valley District.

It is, however, also particularly suited for several other reasons. The fact that it is centrally located within the search ring such that from a radio frequency perspective, and you heard extensive testimony from Mr. Dichter, you also heard from your own radio frequency engineer as to the search ring, and the location of this property within that search ring such that from a radio frequency engineering perspective, the site is ideally situated to fill the gap or deficiency in the coverage area for Verizon Wireless for this particular area of East Amwell Township.

. . . .

Also the fact that the subject site is situated approximate to major traffic arteries; in this case, specifically Old York Road, County Route 514, and Manners Road, also known as County Route 609.

The property itself, the 74-acre farm, which affords a separation distance such that the structure can be located in conformance with the 1,000-foot setback requirement or separation requirement to the nearest residential structure and the other specified uses in the Wireless Telecommunication Ordinance, significant setbacks from the adjoining roads, approximately 1130-foot setback from Old York Road, approximately 1,360-foot setback from Manners Road. The fact that the site is a collocation site.

There are two existing wireless telecommunication facilities at this site. So we have a site here where [there] are already two existing wireless telecommunication facilities in a site that's been approved by the State Historic Preservation Office.

Also the proximity to the existing silos which creates a situation where we can locate the support structure approximate to existing silos and also approximate to the existing telecommunication structures that have already been approved on the site.

So for all these reasons I would submit that this is a use or site that is particularly suited for this wireless telecommunications facility.

I would also note relative to the negative criteria in terms of the [Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152 (1992)] balancing test, the four-step balancing test. . . . [T]he first step of the Sica balancing test is that the Board should identify the public interest at stake. And would I submit to the Board that the public interest at stake with regard to this particular use is significant. The provision of modern state-of-the-art wireless telecommunications is a use that provides a significant benefit to the general public questions, the provision of modern state-of-the-art wireless telecommunications, and the benefits associated with wireless telecommunications provides a direct benefit to the general public.

So would I again submit to the Board that the public interest at stake here with regard to the use is significant.

The second step in the Sica balancing test is that the Board should identify the detrimental effect that will ensue from the granted variance relief. I would remind the Board that this is an unmanned, unoccupied land use. It is remotely monitored continuously 24 hours a day, seven days a week, from a remote monitoring facility. It is visited once approximately four to six weeks for routine monitoring purposes, routine maintenance.

As such, this is a use that does not generate a great deal of traffic. It does not involve many nuisance factors associated with other land uses. It is generally a very passive land use.

The primary focus from a planning perspective with regard to the negative criteria analysis for a wireless telecommunications facility is the visual impact. And in that regard, as I described earlier, a balloon test was performed at the site. It was performed by myself back on October the 23rd of last year in which we floated a four-foot diameter red helium balloon at 120 feet and we have photographers and computer simulated renderings of the proposed silo installation.

Q. And before you get to that, just with respect to the choice of the applicant to propose a silo. Under the ordinance as written, there is no requirement that could be disguised as a silo. The applicant could have under the terms of the ordinance proposed a monopole?

A. That's correct.

Q. However, in this particular area, there were State Historic Preservation Office, SHPO, considerations?

A. That's correct.

Q. And that led the applicant to disguising or stealthing this facility as a silo?

A. That's correct.

Q. It was that willingness on the part of the applicant in this application in that form that led the State Historic Preservation Office to conclude that it would have no adverse impact?

A. Correct.

Masters testified that the Stealth silo would blend in with existing silos and the visual impact was "aesthetically inconsequential."

He then weighed the positive and negative criteria pursuant to Sica v. Bd. of Adjustment of Twp. of Wall, 127 N.J. 152, 164-66 (1992). He said:

I do not believe that the variance relief that's being sought here relative to the sideyard setback, the height of the structure and the separation distance to the historic district would cause either substantial detriment to the public good or substantial impairment to the zone plan.

. . . .

Or to the adjacent properties. Owing to the fact that we are proposing a stealth silo structure here.

. . . .

The fact that the silo blends in with the agricultural character of the existing structures on the site, the fact that the wireless telecommunications ordinance prefers farm buildings. It's specifically in Section 92-804 or 80(a), indicates a preference for antennas on farm buildings. I believe that the proposed stealth silo structure blends with the agricultural landscape; and as such, the variance relief can be granted without substantial detriment to the public good or adjacent properties and also without substantial impairment to the comprehensive zone plan and zoning ordinance to the Township of East Amwell.

When asked by a Board member if his opinion would change if a residence was located on the adjoining property, he responded: "[I]f it was a house, it might change. Because if that were the case, not only would we be seeking a sideyard variance, we'd also be seeking a setback or a variance to encroach within a thousand feet of an off-property single-family residence." Nevertheless, he testified that no house was on the property at the time, and his planning was based on the property's existing characteristics. There was no residence within 1000 feet of the proposed site.

The property's next-door neighbor, Irvin Hockenbury, testified in opposition to the application. He was concerned that the shadow from the silo may have an effect on his crops. He said:

As far as property damages goes, what about the shadow that this silo will cast across my property about three to four hours a day over tops of crops? What impact is that going to have?

. . . .

The height, if I calculate right, will be approximately four stories higher than the existing silos. And 8-foot ceilings, four times eight is 36 feet, this is going to be 37 feet higher than the existing silos.

He also testified that he anticipated building a house on the property. He said:

And as far as Farmland Preservation, yes, I applied two or three years ago and I still don't know where I stand. But on that application there is an exempt spot that I can build a house on that will be within this thousand-foot circle. There is (sic) well be a house within the thousand, which they did not come and seek out for approval. This application is probably at least three years old, long and prior to what their application is, but this portion of the property would be there.

. . . .

That's the only one in the 60-acre parcel one place to build one house. And it is on the application. It is filed with the state.

. . . .

It's right approximately up in here. It's one of the higher spots on my farm and that's where if I want to build a house, where I'm going to locate it.

He acknowledged that two antennas were already in the area, but "not quite as close as this."

II.

It was against this factual background that the Board voted to deny the application. The Board gave a number of reasons for its decision, which may be summarized as follows:

(1) Verizon is a single vendor and the zoning ordinance requires a maximum tower height of 100 feet.

(2) The exception area is already overdeveloped.

(3) The property is not large enough for the facility.

(4) There are other available locations for the facility.

(5) The proposed facility will be less than 2500 feet from a historic district.

(6) Verizon failed to provide documentation of other "coverage from surrounding cellular sites in other adjoining municipalities."

(7) Verizon failed to provide documentation "of attempts to locate antennas on existing buildings or structures."

(8) Verizon failed to provide evidence of attempts "to acquire land from the adjoining property owner so as to avoid the need for significant side yard setback variance" and the "height of the structure at 120' is out of proportion with the other silos located on the property."

(9) Verizon failed to "show how the impact to development of the adjoining . . . tract can be accommodated with the location of the structure just 20' or 28' from the side lot line."

(10) Numerous other properties are available in the Amwell Valley Agricultural District to accommodate a cellular facility.

(11) Verizon failed to show "why the variance relief is necessary."

III.

In general, municipal zoning boards are "entrusted with the sound discretion to determine whether an applicant has met the statutory criteria to obtain a variance." Nextel of N.Y., Inc. v. Borough of Engelwood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 37-38 (App. Div. 2003); see also Kaufmann v. Planning Bd., Twp. of Warren, 110 N.J. 551, 558 (1988); Northeast Towers, Inc. v. Zoning Bd. of Adjustment Borough of W. Paterson, 327 N.J. Super. 476, 493 (App. Div. 2000). In reviewing such a decision, the court's role is limited. See Kaufmann, supra, 110 N.J. at 558. That is, to determine "whether the board's decision was reasonably supported by the record." Nextel of N.Y., supra, 361 N.J. Super. at 38. A decision by a board of adjustment is "presumed to be valid, and the party attacking it has the burden of proving otherwise." Ibid. As such, a board's decision "will not be set aside by a court unless it is arbitrary, capricious, and unreasonable." Ibid. "[G]reater deference is accorded to denial of a variance than to a grant." Northeast Towers, supra, 327 N.J. Super. at 494.

Use variance applications require the zoning board to identify and weigh the positive and negative criteria under N.J.S.A. 40:55D-70d. New Brunswick Cellular Tel. Co. d/b/a Comcast Cellular One v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999). "With telecommunications facilities, we will weigh, as we would with an inherently beneficial use, the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Id. at 15. (internal quotations omitted).

"The positive criteria test is whether a proposed use promotes the general welfare and is particularly suited for the site. With telecommunications towers, an FCC license generally establishes that the use promotes the general welfare." New Brunswick Cellular, supra, 160 N.J. at 14. "To demonstrate that a site is particularly suited for a telecommunications facility, the applicant initially must show the need for the facility at that location." Ibid. Nevertheless, when the applicant, as here, seeks a conditional use variance, "'the focus is on the continued appropriateness of the proposed use (because that use is already permitted) and not whether the site is particularly suited for the proposed use.'" Cell South of N.J., Inc. d/b/a Comcast Communications, Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 84-85 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)).

IV.

First, we begin with the positive criteria. Verizon seeks to place its telecommunications tower in a zone where such towers are permitted as a conditional use provided their height is no greater than 100 feet. Because the proposed height is 120 feet, Verizon had the burden to demonstrate that the use would continue to be appropriate for the site. Cell South of N.J., supra, 172 N.J. at 84-85. The expert testimony presented at the Board hearings conclusively established this fact. While we agree with the Board's conclusion that Verizon was a single vendor and the height limitation for the cellular communications tower is 120 feet, notwithstanding the additional 20 feet requested by Verizon, the site continues to be an appropriate site for the proposed facility.

The Board disregarded the compelling expert testimony demonstrating the need for the cell tower at the particular location. The site is located in the center of the area of need. By using computer propagation studies that are recognized in the industry, both Dichter, Verizon's radio frequency engineer, and Hecht, the Board's radio frequency engineer, testified that the height and location were necessary to address gaps in service. Expert testimony conclusively established gaps in service and that the additional 20 feet in height was necessary to remedy those gaps. A 100-foot tower would not adequately address the gaps in service. That testimony was undisputed. The net increase of 20 feet is, in our opinion, insubstantial. See Cell South of N.J., supra, 172 N.J. at 85-86 (net increase of 69 feet in cell tower from 83 feet to 152 feet not visually consequential); Smart SMR of N.Y., Inc. d/b/a Nextel Communications v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 333 (1998) (finding 50-foot increase in height of monopole would not substantially alter municipality's skyline); Kingwood Twp. Volunteer Fire Co. No. One v. Bd. of Adjustment, Twp. of Kingwood, 272 N.J. Super. 498, 509 (Law Div. 1993) (122-foot increase in height of antenna tower at most minimal intrusion).

That Verizon has an FCC license to provide cellular communications services, and that use promotes the general welfare, was not sufficiently weighed by the Board. The Board's conclusion that other locations are available for the facility is simply belied by the evidence. Verizon examined a number of alternative sites. Not one was sufficient to satisfy its needs, due to either the height of the existing facility or the topography of the land. While the Board concluded that there were other locations available for the facility, no evidence in the record supported that conclusion.

Nor did the Board adequately consider plaintiff's efforts to use alternative technology to lessen the visual impact of the telecommunications tower. As we noted in Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Bd. of Adjustment, 352 N.J. Super. 575, certif. denied, 174 N.J. 543 (2002):

The provider applicant must also show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve. This will require a showing that a good faith effort has been made to identify and evaluate less intrusive alternatives, e.g., that the provider has considered less sensitive sites, alternative system designs, alternative tower designs, placement of antenna on existing structures, etc.

[Id. at 604 (quoting APT Pittsburg Ltd. P'ship v. Penn Twp., 196 F.3d 469, 480 (3d Cir. 1999)).]

That is what Verizon did here. When advised by SHPO that a monopole would be visually intrusive, Verizon reached out to an alternative site design, that of a Stealth silo, which essentially mimicked a permitted structure a grain solo. And notably, not only are silos generally located in agricultural zones, they already exist on the proposed site. Both SHPO and the County Historical Committee approved the design. Though the local Historical Committee believed 120 feet was too high, it also approved of the silo design. That design, in fact, hides all of the telecommunications equipment within the silo. It will look like any other silo on the site, just taller. In sum, Verizon satisfied the positive criteria.

We are also persuaded that Verizon satisfied the negative criteria. That may be accomplished when the applicant demonstrates "the use will not substantially impair the purpose and intent of the zoning ordinance, or constitute a substantial detriment to the public good." New Brunswick Cellular, supra, 160 N.J. at 15.

Here, Masters, the planner, testified that the use would not substantially impair the purpose or intent of the zoning ordinance, nor would it constitute a substantial detriment to the public good. There was no evidence that the proposed telecommunications equipment would negatively affect property values. Nemeth testified it would be safe. No testimony was presented to show that the silo would be unsafe, nor that it would emit any noise, odor, smoke, discharge or other waste. The facility will be remotely monitored twenty-four hours a day, seven days a week. It will not generate traffic. The planner described it "as a very passive land use." Both SHPO and the County Historic Committee concluded that the proposed silo would have no adverse impact on the preservation district.

As a "Stealth silo structure," it will blend in with the existing silos on the premises. Indeed, the proposed silo may be used as a regular silo, and the ordinance permits silos of that height in the subject zone. That being the case, we agree with the planner who concluded that the "visual impact is aesthetically inconsequential."

In arriving at its conclusion, the Board appeared to have relied heavily on Hockenbury's testimony that the shadow from the proposed silo may interfere with his ability to farm his ability to make hay while the sun shines. We do not find Hockenbury's testimony to be compelling. It was ambiguous, at best. He said: "If you're making hay it'll take maybe another hour extra to get the hay dry in that particular spot because of the lack of sunshine if it's in the shade." His best argument is that it might take him an extra hour to dry his hay, if, in fact, the silo shaded an area where hay was drying. But, he gave no details of how the proposed silo would impact his own ability to dry hay, how often he dries hay, where he dries it, and whether he could dry hay somewhere else on the property. His testimony was no more than anecdotal.

Hockenbury also testified that he may build a house within 1000 feet of the proposed facility, which would, all parties agree, require an additional variance. The Board relied on that testimony. Nonetheless, Hockenbury indicated he has been waiting for an approval from "Farmland Preservation" for "two to three years" and he "still [did not] know where [he stood]." What he said, in other words, was that he would like to build a house on the 2.4 acre parcel, but he did not know if he would receive permission to build it there, and significantly, he did not submit a plan to the Board showing where on the parcel it would be located. The fact is there was no residential premises on the property at the time the application was submitted, nor is there, to our knowledge, one there now.

The Board failed to perform the balancing analysis required in Sica, supra, 127 N.J. at 165-166. It failed to give due regard to the public interest fostered by the telecommunications equipment. The detrimental effects it identified are unsupported by the record. It disregarded the expert testimony, including that of its own expert.

The Board also failed to heed the dictates of the Telecommunications Act of 1996 (TCA), which provides, in part, that a local authority's decision to deny a request to place a wireless service facility must be supported by substantial evidence in the record. Cell South of N.J., supra, 172 N.J. at 89 (citing 42 U.S.C.A. 332(c)(7)(B)(iii)). Here, the substantial evidence in the record supports Verizon's application. It was the Board's decision that was not predicated on substantial evidence.

Reversed. We remand to the Law Division to enter judgment in favor of Verizon consistent with this opinion.

 

The ordinance further provides, that if a "silo" constitutes an accessory use, a side yard setback of only 28 feet is necessary. During the Board hearings, counsel for Verizon agreed with the Board that the proposed use was not an accessory use.

The next highest silo on the site, which is owned by Nextel, is 90 feet high.

(continued)

(continued)

29

A-0462-04T3

November 7, 2005