T-MOBILE NORTHEAST L.L.C. v. ZONING BOARD OF ADJUSTMENT of the BOROUGH OF NEW MILFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3068-09T3

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

f/k/a OMNIPOINT COMMUNICATIONS,

INC.,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT

of the BOROUGH OF NEW MILFORD,

Defendant-Appellant.

_______________________________________

February 22, 2011

Argued January 19, 2011 Decided

Before Judges Yannotti and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3532-09.

Scott G. Sproviero argued the cause for appellant.

Gregory J. Czura argued the cause for respondent.

PER CURIAM

Defendant, the Zoning Board of Adjustment of the Borough of New Milford (Board), appeals from an order entered by the Law Division on January 20, 2010, which reversed the Board's decision to deny an application by plaintiff for site plan approval and certain variances required to construct a wireless communications facility in the Borough. We affirm.

On January 17, 2008, plaintiff filed an application with the Board for preliminary and final site plan approval and certain variances required for the construction of a ninety-foot monopole and related equipment that plaintiff said were necessary to address a significant coverage gap in the wireless telecommunications system in the Borough. The Board conducted several public hearings on the application, and on February 10, 2009, voted to deny the application.

The Board memorialized its action in a resolution dated March 10, 2009. In its resolution, the Board stated that "the overriding residential nature of the neighborhood" where the facility would be constructed obligated plaintiff "to employ and utilize the highest and best means of camouflage of the equipment . . . in an effort to maintain the character and quality of the neighborhood in question." The Board said that plaintiff had only considered two "camouflage options[,]" specifically, a "flag pole" and "faux tree" design. The Board found that plaintiff's "limited analysis" of alternative means of camouflage was "insufficient to prevent the substantial impairment of the zone plan and zoning ordinance in the neighborhood surrounding the site in question[.]"

On April 16, 2009, plaintiff challenged the Board's action by filing an action in lieu of prerogative writs in the Law Division. The trial court considered the matter on December 18, 2009. Thereafter, the court filed a written opinion dated January 7, 2010, in which it concluded that the Board's action was arbitrary, capricious and unreasonable.

The trial court found that plaintiff had established the positive and negative criteria required to obtain a use variance pursuant to N.J.S.A. 40:55D-70(d), and the positive criteria "far outweigh the negative." The court said that denial of the variance was not warranted merely because plaintiff had not used the "most effective means of camouflage" for its facility. The court entered a judgment dated January 20, 2010, which reversed the Board's decision; granted the variances and site plan approval that plaintiff sought; and allowed the development to proceed upon the issuance of appropriate construction permits. This appeal followed.

The Board argues that the trial court's judgment should be reversed because: 1) plaintiff failed to satisfy its burden of demonstrating that the proposed design for its facility constitutes the best and highest means of equipment camouflage; and 2) the trial court exceeded the scope of its review by ruling on the issue of use variance which had not been decided by the Board.

In our view, these arguments are entirely without merit. We accordingly affirm the trial court's judgment dated January 20, 2010, substantially for the reasons stated by the court in its written opinion of January 7, 2010. We add the following comments.

Here, plaintiff filed an application with the Board seeking certain variances and site plan approval for the construction of a wireless telecommunications facility in the Borough. The trial court noted that, among other things, plaintiff had requested issuance of a use variance pursuant to N.J.S.A. 40:55D-70(d).

The statute provides that a variance may issue "[i]n particular cases for special reasons[.]" Ibid. The statute further provides that no variance may issue thereunder unless it "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." Ibid.

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

A telecommunications facility serves the general welfare and thereby satisfies the positive criteria under N.J.S.A. 40:55D-70(d), provided the use is particularly suited to the proposed site. Smart SMR v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 331-32 (1998). In this case, plaintiff presented sufficient evidence to show that the site proposed for its facility is particularly suitable. The Board essentially conceded this point but nevertheless found that plaintiff did not satisfy the negative criteria under N.J.S.A. 40:55D-70(d) because it failed to employ the most effective means of camouflage for the proposed facility.

However, the trial court found that, although the proposed facility would have some adverse visual impact on the surrounding neighborhood, this was not sufficient to warrant denial of the variance. The court noted that, in reaching its decision, the Board had not engaged in the balancing of the positive and negative effects of the facility, as required by Sica. Therefore, the court correctly found that the Board's decision to deny plaintiff's application was arbitrary, capricious and unreasonable.

In seeking reversal of the court's judgment, the Board relies upon Cellular Telephone Co. v. Zoning Bd. of Adjustment of Ho-Ho-Kus, 197 F.3d 64 (3d Cir. 1999). In that case, the Borough of Ho-Ho-Kus had denied an application by three cellular phone providers for variances required for the construction of a wireless telecommunications facility in the municipality. Id. at 66. The local board found that the facility was not required because the cellular telephone service in the Borough was adequate. Id. at 67. The local board also found that the monopole would have a significant detrimental visual impact on the community, and it would have a significant adverse effect on property values. Ibid.

The cellular phone providers filed an action in the Federal District Court, alleging that the Borough's action violated section 704 of the Telecommunications Act of 1996, 47 U.S.C.A. 332(c)(7), and New Jersey's zoning law. Id. at 68. The district court granted the Borough's motion for summary judgment, finding that the action of the local board did not have the effect of prohibiting personal wireless services in the municipality; the decision was based on substantial evidence; and the decision was consistent with New Jersey's zoning laws. Id. at 67.

The cellular phone providers appealed. Id. at 66. In its decision, the Court of Appeals noted that the relevant provisions of the Telecommunications Act preserve local authority over the placement, construction and modification of personal wireless service facilities but subject the exercise of that authority to six conditions. Id. at 68 (citing 47 U.S.C.A. 332(c)(7)(A) and (B)(i)).

The court noted that those conditions are: 1) a local regulator may not discriminate unreasonably among providers of functionally equivalent wireless services; 2) the local regulation may not prohibit or have the effect of prohibiting the provision of personal wireless services; 3) the local body must act on applications for the placement, construction and modification of wireless facilities within a reasonable time; 4) all decisions must be in writing and supported by substantial evidence; 5) persons adversely affected by the local regulatory action may seek judicial review of the same; and 6) local officials may not regulate personal wireless facilities on the basis of the environmental effects of radio frequency emissions. Ibid. (citing 47 U.S.C.A. 332(c)(7)(B)(i-v)).

The Third Circuit determined that that the Telecommunications Act did not preclude Ho-Ho-Kus from considering the adequacy of personal wireless services in rendering its decision on the providers' application. Id. at 69. The court found that the local board's action did not effectively prohibit the provision of personal wireless services in the municipality. Id. at 69-70.

The court also found that there was substantial evidence to support the local board's determination regarding the detrimental effects of the facility upon the municipality, including its adverse aesthetic impact. Id. at 73. The court determined, however, that there was insufficient evidence to support the Borough's determination that the existing wireless service in the municipality was adequate. Ibid.

The court additionally concluded that the local board's decision complied with New Jersey's zoning law. Id. at 75. The court stated that the local board had appropriately balanced the benefits of the proposed structure against its negative consequences. Ibid.

In our view, the Board's reliance upon Cellular Telephone is misplaced. This case does not involve a claim under section 704 of the Telecommunications Act. Moreover, in this case, the Board relied upon a single factor in denying plaintiff's application, specifically, the adverse visual impact of the proposed facility. In Cellular Telephone, the adverse visual impact of the proposed facility was only one of several adverse impacts relied upon by the local board for its decision.

In addition, in this case, the Board did not comply with the applicable requirements of our zoning laws. As we stated previously, the Board failed to engage in the balancing of the positive and negative impacts of the facility, as required by Sica, supra, 127 N.J. at 164. The Board erroneously found that the adverse visual impact of the facility, and plaintiff's failure to employ what it termed the highest and best means of camouflage for the facility, was sufficient to warrant denial of plaintiff's application.

Affirmed.