OMNIPOINT COMMUNICATIONS, INC v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4677-07T34677-07T3

OMNIPOINT COMMUNICATIONS, INC.,

Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF

THE TOWNSHIP OF WALL,

Defendant-Respondent.

________________________________

 

Argued March 11, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5153-04.

Richard Stanzione argued the cause for appellant (Hiering, Dupignac, Stanzione & Dunn, P.C., attorneys; Mr. Stanzione, on the briefs).

Jeff Thakker argued the cause for respondent (Law Office of Geoffrey S. Cramer, attorneys; Mr. Cramer, on the brief).

PER CURIAM

Plaintiff Omnipoint Communications, Inc. (Omnipoint) appeals the Law Division's dismissal of its action in lieu of prerogative writs, which challenged the decision of defendant Zoning Board of Adjustment (Board) of the Township of Wall (Township) denying its application for a conditional-use variance for the construction of a cellular communications tower (tower). Because Omnipoint failed to demonstrate that the actual fall zone of the proposed tower would not include an adjacent power substation, we affirm.

I.

We glean the following factual and procedural background from the record. Omnipoint, which is licensed by the Federal Communications Commission as a wireless telecommunications provider, recognized a gap in its wireless communication coverage and sought to remedy it by constructing a 130-foot tower in the Township on a portion of a 1.75 acre lot owned by Jersey Central Power & Light (JCP&L).

Telecommunications facilities are a permitted conditional use in the Township's GI-2 zoning district. However, because Omnipoint's proposal for the tower did not satisfy the requirements for the conditional use, Omnipoint had to apply to the Board for a conditional-use variance pursuant to N.J.S.A. 40:55D-70(d)(3). Variances were required because the proposed tower did not meet the required setbacks from both the applicable property lines and from the existing JCP&L substation.

Omnipoint filed an application for a conditional-use variance in November 2003. Its initial application sought to construct a 170-foot tower, in the form of a monopole, in a fifty-by-fifty-foot, fenced-in compound. At a Board hearing on April 7, 2004, Omnipoint amended its application to reduce the height of the proposed tower from 170 feet to 130 feet. At a subsequent meeting on June 2, 2004, the Board requested that Omnipoint relocate the tower slightly within the compound to bring it more in line with the property-line setback requirements. Omnipoint agreed to do so.

The Board focused on two separate issues related to public safety. First, the proposed tower site is near a general aviation airport used by aircraft towing banners for advertising along the shore. There was concern that the tower might be in the flight path of those aircraft. Second, there is an existing JCP&L power substation on the lot. The monopole tower was proposed for placement approximately fifty feet away from the power substation, with the tower's perimeter fence immediately adjacent to the power station. The governing ordinance, however, required that the tower be a distance of twice its height, in this case 260 feet, away from the closest nonresidential use, i.e., the power substation.

Omnipoint presented evidence to the Board on both safety issues, including the "Determination of No Hazard to Air Navigation" report for the proposed tower issued by the Federal Aviation Administration (FAA) on June 15, 2004. Omnipoint also presented testimony that the monopole was designed to buckle in on itself, rather than to fall over as would a tree. In addition, there was testimony that such monopoles were able to withstand high winds and hurricanes.

Following several days of hearings, the Board voted on July 21, 2004, to deny Omnipoint's application for the conditional-use variance. In its resolution, adopted on October 6, 2004, the Board explained its reasoning for denying Omnipoint's application. The Board found:

23. Several members of the public testified their concerns related to the air traffic from the adjacent airport. Applicant submitted to the Board its approval from the FAA. Applicant testified that the FAA formed their calculations based on the determination of the location of the nearest runways to the airport.

24. However, the public was concerned, as was the Board, with the fact that the adjacent airport is also used for the landing and take-off of "banner planes." These are the planes that tow large banners behind them used for advertising especially along the oceanfront in the summer.

25. Applicant was asked whether the FAA had taken into consideration the landings and the take-offs of these types of planes with their banners being towed, some of which may land or take off outside the runways.

26. Applicant indicated they had no information as to whether the FAA took the question of banner airplanes into account in making their determination that the height of the tower was safe.

27. This was further exacerbated by the public and the Board's concern that the tower is located on the Jersey Central Power & Light substation. In fact several of the conditions requiring setbacks from commercial usages are not met as a result of the proximity to the substation use.

28. The Board was concerned that there was not sufficient evidence in the record to establish that the tower was not a safety hazard related to the banner planes that took off from the airport, especially with the problems that could occur if a plane or a banner were to crash into the tower and what might happen if the tower struck the power station.

29. Therefore, the Board finds that the applicant failed to carry its burden of establishing that the tower presents no substantial safety concerns because there was not sufficient evidence submitted to the Board that the banner planes were taken into account by the FAA and in light of the tower's proximity to the substation, which violates the conditional requirements for this use, the Board concludes that applicant has not satisfied the negative criteria for the grant of the conditional[-]use variance.

Omnipoint filed its initial action in lieu of prerogative writs challenging the Board's decision in November 2004. The action was tried in May 2005. The trial judge issued a written opinion on June 30, 2005, remanding the matter to the Board. She directed Omnipoint to "initiate an inquiry, either through the airport or directly to the FAA as to whether 'banner[-] plane' traffic was considered and, if so, what relevance did that traffic have on the report of June 15, 2004." She further stated that, if the FAA had considered the banner planes in finding no safety issues, she would require the Board to grant the variance. The judge did not address the issue of the power substation in her opinion.

On July 19, 2005, in response to an inquiry by Omnipoint, the FAA issued a clarifying letter. The FAA wrote that "[a]ll aircraft operations were considered" prior to determining that the tower "would not interfere with any airport traffic patterns, would not adversely impact any VFR or IFR terminal or enroute procedure, nor would it impact any plans on file."

The Board then moved for reconsideration of the trial judge's June 2005 ruling. Omnipoint cross-moved, seeking a judgment requiring the Board to grant the requested conditional- use variance, inasmuch as the FAA had resolved the banner-plane issue in its favor.

On October 24, 2005, the trial judge entered an order requiring that additional information be obtained from the FAA with respect to its consideration of the banner-plane issue. We granted the Board's motion for leave to appeal that order.

In Omnipoint Communication, Inc. v. Zoning Board of Adjustment of Township of Wall, No. A-2006-05T5 (App. Div. Oct. 20, 2006) (Omnipoint I), we reversed the Law Division and dismissed Omnipoint's action in lieu of prerogative writs. We found that the trial court had erred in issuing a conditional ruling because the Board's denial of Omnipoint's application for a use variance was not premised solely on the banner-plane issue, but also on the close proximity of the tower to the power substation. Because the "Law Division did not find this decision to be arbitrary, capricious or unreasonable," we concluded that it was "an independent basis" for a denial of the conditional-use variance. Id. (slip op. at 10).

Omnipoint moved for reconsideration before us, pointing out that the Law Division had not specifically ruled on the Board's fall-zone proximity finding. Consequently, we remanded to the Law Division so that "an order that addresses and decides whether or not the Board's decision regarding the fall zone is arbitrary, capricious, or unreasonable" could be entered.

A hearing to address the Board's decision concerning the fall-zone proximity was held before a different Law Division judge, who issued a written opinion on July 16, 2007, finding that Omnipoint had not presented sufficient evidence as to what would happen if the tower collapsed and hit the power station. He remanded

to the Board for further findings on the limited issues as to the consequences of the tower falling and striking the substation. Bear in mind that the Board understands Plaintiff's claim that the monopole will fall into itself, that is not the issue. The issue to be determined is not whether the tower will strike the substation, but rather, what the consequences would be if the tower does strike the substation.

The Board held a hearing on September 5, 2007, to address the issue on remand. At the hearing, James Randall Hauk, a senior technical specialist for First Energy Corp., JCP&L's parent company, testified that if a tower of the type proposed by Omnipoint were to collapse on the substation, and immediate repairs could not be made, a "mobile substation" would be brought in to provide power until permanent repairs could be completed. Hauk stated that permanent repairs could take days to accomplish, but a mobile substation could be up and running within ten to twelve hours.

Hauk also testified that energy companies were now viewing cell phone towers adjacent to substations as a means of assistance in their "monitoring and control system" which "result[s] in better electric service for [their] customers." In response to questioning by a Board member, Hauk stated that First Energy shared over four hundred sites with telecommunication towers and that no monopole-type tower had ever fallen.

Joseph Rizzitello of the Wall Township Fire Prevention Bureau also testified at the hearing. Rizzitello testified that if the tower "did fall, hit the transformer, [there was a] good chance, a very good chance [there would be a] fire and explosion." He expressed further concern that "if that happened in the area [there] would be firealarm systems down, [fuses] could go out for heating units, AC units." In response to Omnipoint's argument that it was more likely that a tree would fall and hit the substation than the monopole, Rizzitello stated:

The statements have been made there are trees in the area, but I don't think any of those trees around that power plant are 130 feet tall, and if a tree did fall on the power plant, in most cases what I've seen in my many years as a firefighter is they normally burn up. And in most cases when it happens the connection or whatever is gone.

This pole, I'm sure it's made of steel or something like that, that's going to conduct the electricity. It's going to be a natural ground to wherever it fell from.

The final witness at the hearing was Police Officer Ross D'Andrea, who expressed his concern that, if the substation were to be damaged and power were to go out in the area, there would be a serious drain on police power to direct traffic at the lights along the Route 34 corridor. He also raised concern that the schools in the area would be adversely affected if the power were to go out for an extended period of time.

The Board prepared a resolution memorializing its findings as to the consequences of a monopole-type tower striking the substation. The Board concluded:

based on upon the testimony received and reports reviewed that the negative consequences of a collapse of a monopole onto the substation involves not just a power outage for two to three hours (and quite probably a longer time of at least seven to ten hours) but the delivery of emergency police, fire and first aid services would be severely stretched and personnel exhausted in the effort to provide firefighting services, police and first aid protection and response to events which might also result in a shut down of emergency alarm[] systems, both residentially and commercially. The very real possibility exists that loss of life and property would be envisioned as an unacceptable collateral consequence of a electrical fire and outage occasioned by the collapse and draw down of police resources to deal with traffic situations and unavailability of those resources to help in other emergencies that might arise elsewhere in the township.

On March 25, 2008, the trial judge issued a final written opinion finding,

the Board's denial should be affirmed [and] that no relief should be granted from the Ordinance as the applicant has not supplied sufficient facts that would satisfy the Board's concern about collapse of the tower within the fall zone. The actions of the Board are therefore, not arbitrary, capricious and unreasonable.

Omnipoint's action in lieu of prerogative writs was, consequently, dismissed.

This appeal followed.

II.

On appeal, Omnipoint makes three arguments. First, it contends that denial of the conditional-use variance was "arbitrary, capricious and unreasonable." Second, it asserts that, because the denial was not based on "substantial evidence," it violates the Federal Communications Act of 1996, 47 U.S.C.A. 332(c)(7)(B)(i)(II), (iii). Finally, Omnipoint argues that the Law Division erred in remanding the matter to the Board for a determination of what "could" happen if the monopole fell and struck the substation.

In reviewing the decision of a zoning board, we afford deference to the Board's decision to deny or grant a variance. "[T]he courts must recognize that local officials 'who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people are undoubtedly the best equipped to pass initially on such applications for variance.'" Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965) (quoting Ward v. Scott, 16 N.J 16, 23 (1954)). The Board's decision carries with it a presumption that its members have "act[ed] fairly and with proper motives and for valid reasons." Ibid.

We also afford zoning boards "wide latitude in the exercise of delegated discretion" and "cannot substitute an independent judgment for that of the boards in areas of factual disputes." Ibid.

So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere. A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.

[Id. at 296-97 (citations omitted).]

Additionally, "[c]ourts give greater deference to variance denials than to grants of variances, since variances tend to impair sound zoning." Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001) (citing Cerdel Constr. Co. v. Twp. Comm. of E. Hanover, 86 N.J. 303, 307 (1981); Mahler v. Bd. of Adjustment of Fair Lawn, 94 N.J. Super. 173, 186 (App. Div. 1967), aff'd o.b., 55 N.J. 1 (1969)). When considering the decision of the Board to accept or reject the testimony of a witness, "[w]here reasonably made, such choice is conclusive on appeal." Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div. 1960).

N.J.S.A. 40:55D-3 defines a conditional use as:

a use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefore by the planning board.

Consequently, although a conditional use may be appropriate in some sections of a zoning district, it is not necessarily appropriate everywhere within the zoning district. "It is for this reason that a municipality is permitted to delegate discretion to its planning board to consider the suitability of a proposed conditional use for a particular site." Cardinal Props. v. Westwood, 227 N.J. Super. 284, 287 (App. Div.), certif. denied, 111 N.J. 631 (1988).

If, however, the proposed conditional use does not meet all of the conditions for the use, an applicant must apply to the board of adjustment for a conditional-use variance under the standards of N.J.S.A. 40:55D-70(d). Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 296 (1994). "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." Id. at 287.

In Coventry Square, the Supreme Court articulated the burden of proof that applicants would need to satisfy in order to be granted a conditional-use variance. The Court stated:

the proof of special reasons that must be adduced by an applicant for a "d" variance from one or more conditions imposed by ordinance in respect of a conditional use shall be proof sufficient to satisfy the board of adjustment that the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance. That standard of proof will focus both the applicant's and the board's attention on the specific deviation from conditions imposed by the ordinance, and will permit the board to find special reasons to support the variance only if it is persuaded that the non-compliance with conditions does not affect the suitability of the site for the conditional use. Thus, a conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems.

 
The thrust of the proof addressed to the negative criteria is similar. In respect of the first prong of the negative criteria, that the variance can be granted "without substantial detriment to the public good," 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. "The board of adjustment must 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.'" Medici [v. BPR, Co.], 107 N.J. [1,] 22 n.12 [(1987)] (quoting Yahnel [v. Bd. of Adjustment], 79 N.J. Super. [509,] 519 [(App. Div.), certif. denied, 41 N.J. 116 (1963)] (explaining weighing function of board of adjustment in respect of negative criteria)). In respect of the second prong, that the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), 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.

[Id. at 298-99.]

The Federal Telecommunications Act of 1996 (TCA), specifically 47 U.S.C.A. 332(c)(7)(B)(iii), requires use of a "substantial evidence" standard in zoning matters involving the denial of a wireless telecommunications facility's application. See also Cellular Tel. Co. v. Zoning Bd. of Adjustment of Borough of Ho-Ho-Kus, 197 F.3d 64, 71 (3d Cir. 1999). However, the "substantial evidence" requirement is analogous to the evidentiary requirements under New Jersey's Municipal Land Use Law, see Cellular Tel. Co. v. Bd. of Adjustment of Harrington Park, 90 F. Supp. 2d 557, 563 n.5 (D.N.J. 2000), and, consequently does not create a different standard of proof from that applicable under State law.

III.

In the case before us, the Board does not dispute Omnipoint's need to enhance its cell phone coverage in the area surrounding the proposed tower. In addition, the Township has not relied on the proposal's failure to meet required property-line set-back or lot-size requirements in denying the variance. Instead, the Board focuses on the positive and negative criteria as they relate to its concern about the potential danger to the public if the tower were to fall and damage the power substation. Consequently, Omnipoint's reliance on Cell South of New Jersey, Inc. v. Zoning Board of Adjustment of West Windsor Township, 172 N.J. 75, 86 (2002), for the proposition that a wireless carrier can satisfy the positive criteria requirement by presenting evidence of improvements that would result from the proposed facility, is misplaced.

Omnipoint argues that the requirement governing the distance between a cellular tower and an adjacent non-residential use does not apply to the relationship between the substation and the proposed monopole because they are on the same lot. However, Omnipoint admitted in its complaint that the proposed structure does not comply with that requirement. Additionally, in Omnipoint I, supra, No. A-2006-05T5 (slip op. at 2) (emphasis added), we stated: "Omnipoint's proposed facility deviates from three conditional-use standards (minimum lot size; tower setback; and fall-zone setback from non-residential users) . . . ." In any event, we see no basis to disregard the Board's interpretation of the ordinance it is charged to implement. See Grubbs v. Slothower, 389 N.J. Super. 377, 383 (App. Div. 2007).

The determinative issue before us is whether Omnipoint satisfied the criteria for a conditional-use variance by demonstrating that the proposed site is still suitable for a cellular tower even though the substation is within the tower's fall zone. Although the Board concedes that it is permissible under Ord. 140-144D(1) for such a tower to exist on the same lot as another building, it argues that the applicant must demonstrate that the other building is outside the fall zone of the tower or that it is entitled to a conditional-use variance by "showing that it has minimized the danger or impact in the event of tower failure."

In the Law Division, the trial judge upheld the Board's denial of the conditional-use variance, finding that Omnipoint had not presented sufficient evidence to overcome "the Board's concern about collapse of the tower within the fall zone." In reviewing that decision, our role is only to determine whether there is sufficient or "substantial" evidence in the record to support the Board's finding, so that it is not arbitrary, capricious, or unreasonable. Kramer, supra, 45 N.J. at 296-97.

A preliminary question, however, is whether we review only the Board's initial findings and decision or whether we also review the supplemental findings and decision made after the remand from the Law Division. Omnipoint argues that we should review the original decision only, contending that there should have been no remand to the Board because our remand to the trial court was "for the entry of an appropriate order, i.e., an order that addresses and decides whether or not the Board's decision regarding the fall zone is arbitrary, capricious or unreasonable." While we agree with Omnipoint that our remand to the Law Division did not specifically call for or even contemplate a further remand to the Board, we find no abuse of the Law Division's discretion in making the further remand, which permitted both sides to supplement the record on the fall-zone issue. Consequently, we address the Board's overall decision.

We make our review in the context of the ordinance's requirements and the facts developed at the hearings. As already noted, the tower does not conform to the condition of the use that the fall zone be 260 feet, i.e., twice its length, from the substation. As proposed by Omnipoint, the monopole tower would only be a little more than fifty feet, about one-third of its length, from the substation. That is slightly less than twenty percent of the required distance.

During the initial hearings, Omnipoint's witness Anthony Suppa testified that "the fall zone would be almost entirely within the property," apparently referring to the fenced-in area composing the proposed Omnipoint site immediately adjacent to the substation. (Emphasis added). Although Omnipoint's witness Timothy Kronk testified that monopoles are designed not "to topple over at one hundred and thirty feet away" but "to kink and collapse on themselves," Omnipoint offered no specific testimony as to what the actual fall zone would be - other than "almost" entirely within the fenced in area. The Board could easily and reasonably find from that testimony that there was a potential for the tower to hit the substation. Clearly, Omnipoint did not present substantial evidence that the actual fall zone would not encompass the substation.

At the second hearing, there was testimony from an employee of First Energy Corp., tendered by Omnipoint, to the effect that, if the monopole tower did hit the substation, there would be a loss of power to JCP&L customers for several hours to several days, depending upon the severity of the damage caused at the substation. There was also competent testimony from public safety officials about a range of likely or possible consequences of such a power outage. While Omnipoint seeks to dismiss that testimony as reminiscent of the "sky falling" in "Chicken Little," the record supports the Board's concern that there is the potential for adverse consequences beyond a loss of power to residential and commercial customers. The Board credited the testimony of the public safety officials and that decision "[w]here reasonably made, . . . is conclusive on appeal." Reinauer Realty Corp., supra, 59 N.J. Super. at 201.

Under the present facts, the arguments that the Omnipoint failed to meet the requisite positive criteria mirror the arguments that it failed to satisfy the negative criteria, the two being inextricably intertwined. Because of the potential danger associated with a monopole failure, the Board was not "satisfied that the grant of the conditional-use variance for the specific project at the designated site [was] reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district." Coventry Square, supra, 138 N.J. at 299.

The evidence in the record provides substantial support for the Board's finding that the site is not appropriate for the proposed conditional use because of the very substantial deviation from the required distance between the tower and the substation, and because of the potential danger of having the tower so close to the substation in the event it failed. The Board was willing to allow variances from the other conditions not met by Omnipoint's proposal. Its unwillingness to allow such a significant deviation from the "separation distance" requirement was not arbitrary, capricious, or unreasonable. Having afforded the necessary deference to the Board's findings of fact and credibility determinations, there is ample evidence in the record to support the Board's finding that Omnipoint failed to satisfy the requisite positive and negative criteria for a conditional-use variance. Consequently, we affirm.

Affirmed.

 

The papers and the trial court's decision on the motion for reconsideration were not included in the appendix. The facts are taken from this court's opinion in Omnipoint Communications, Inc. v. Zoning Board of Adjustment of Township of Wall, No. A-2006-05T5 (App. Div. Oct. 20, 2006).

The stated goals of Ord. 140-144(A)(1) include: "(a) Protect[ion of] residential areas and land uses from potential adverse impacts of towers and antennas; . . . (h) Consider[ation of] the public health and safety of communication towers; and (i) Avoid[ance of] potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures."

(continued)

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A-4677-07T3

August 17, 2009