T-MOBILE NORTHEAST LLC and NEW YORK SMSA LIMITED PARTNERSHIP, d/b/a VERIZON WIRELESS v. TOWNSHIP OF SCOTCH PLAINS ZONING BOARD OF ADJUSTMENT and TOWNSHIP OF SCOTCH PLAINS -

NOT FOR PUBLICATION /* /*]]>*/

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2706-11T1

T-MOBILE NORTHEAST LLC

and NEW YORK SMSA LIMITED

PARTNERSHIP, d/b/a

VERIZON WIRELESS,

Plaintiffs-Appellants,

v.

TOWNSHIP OF SCOTCH PLAINS

ZONING BOARD OF ADJUSTMENT

and TOWNSHIP OF SCOTCH PLAINS,

Defendants-Respondents.

___________________________________________

March 11, 2013

 

Argued September 25, 2012 - Decided

 

Before Judges Fisher, Alvarez and St. John.

 

On appeal from Superior Court of New Jersey, Law Division,Union County, Docket No. L-508-11.

 

Gregory J. Czura argued the cause for appellants.

 

Vincent K. Loughlin argued the cause for respondent Township of Scotch Plains Zoning Board of Adjustment (Loughlin Law Firm, attorneys; Mr. Loughlin, on the brief).

 

Michael V. Cresitello, Jr., argued the cause for respondent Township of Scotch Plains (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Cresitello, of counsel and on the brief).

 

PER CURIAM
 

Plaintiffs T-Mobile Northeast, LLC (T-Mobile) and New York SMSA Limited Partnership, d/b/a Verizon Wireless (Verizon Wireless) (collectively, applicants), appeal from an order dismissing their complaint in lieu of prerogative writs, which challenged the denial of their application by the Township of Scotch Plains Zoning Board of Adjustment (Board) for site plan approval and use variances. We reverse and remand.

I.

A. The Project

The applicants sought to install a 125 foot tall monopole, about six feet in diameter, disguised as a tree (monopole),1 holding nine T-Mobile anten nas at the height of 118 feet and twelve Verizon Wireless antennas at the height of 108 feet. The project would be located in the Hillside Cemetery, which is located in a R-1 Residential Zone.2

The compound around the monopole would contain three T-Mobile equipment cabinets, and Verizon Wireless would erect a equipment shelter with back-up batteries and a generator at the compound. T-Mobile would only have backup batteries in its equipment cabinets. The compound grounds would have a gravel surface, framed by some type of a wood or concrete barrier to keep the gravel from dispersing.

Both facili ties would require routine maintenance by a technician every four to six weeks. They would also be monitored remotely from the applicants' switch stations or network operation centers, in order to detect and report tampering or other occurrences at the site so to dispatch technicians if necessary.

The monopole would be built to potentially co-locate three other providers, including Scotch Plains emergency services, each such addition requiring Board approval. The site would also offer Enhanced 911 location-identification service for the applicants' users.

B. The Lease at the Cemetery

T-Mobile3 entered into a lease with the Hillside Cemetery Association of Plainfield (the Cemetery Association), the owner of the 130-acre Hillside Cemetery. The Township and the Cemetery Association entered into a settlement agreement permitting the leasing of a portion of cemetery property for installation of wireless facilities. In consideration for the settlement agreement, the Cemetery Association was to pay the sewer assessment taxes with interest (determined to be $20,000), from which the association had been exempt under the Cemetery Act. N.J.S.A. 45:27-20. Its terms required approval from the Board for the proposed use. Additionally, wireless communications tenants would permit the Township police and fire services to place communications antenna on the tower at no charge. Lastly, the agreement stated that the tax payment was non-refundable, regardless of whether the Board granted approval to install the wireless equipment.

C. The Application and Hearings

Applicants filed an application for "d" variances under N.J.S.A. 40:55D-70(d) and site plan approval with the Board. Hearings were held over eight days.

The applicants' first witness was Glen Pierson, a radio frequency (RF) engineer. He reviewed T-Mobile and Verizon's existing cell sites in Scotch Plains and surrounding towns.4 Pierson described the independent drive test that his firm conducted to collect radio signals and to model the results. Using this data, propagation maps were generated of each carrier's signal strength which determined areas where coverage fell below each carrier's reliability standard.5 The coverage gap area is comparable for both carriers. Placing the tower on the elevated cemetery grounds would provide coverage to an additional 1200 users, but would still leave uncovered an area to the north of the site of approximately 300 people. In addition to the residents of the area, there existed a gap in coverage for vehicular traffic. To cover the entire gap, either the tower would need to be moved north to higher ground in a residential area, which "is not an option,"6 or the tower would have to be raised by 100 feet, which would not only create aesthetic concerns but also potential frequency interference with other towers and diminished service in those areas.

In rejecting applicants' request for variances and site plan approval, the Board found that the applicants had not demonstrated "in any evidence or testimony other than the applicants' 'single search ring' or 'mapping' that there is in fact a 'gap' or actual problem in service which causes the need for this tower and facility." The Board noted that the applicants failed to conduct any tests other than the promulgation mapping in order to determine whether there was a gap in service. The Board further found "the testimony and evidence overwhelming from the neighbors, customers, and other users of the applicant[s'] cellular communications system[s] that they have no such problems such as the applicant[s] claim[] to exist through [their] expert testimony and factual presentation."

The Board concluded that the applicants did not establish through competent evidence and testimony that there existed a "gap" in service. The Board further determined that the applicants failed to show that the project would in any event fill the gap which was claimed to exist in the system in the least intrusive manner, and that the applicants failed, in fact, to make a good faith effort to investigate alternative technologies and alternative sites which would eliminate the need for the monopole. The Board also determined

from the testimony and comments of neighboring property owners, including one neighbor, Mr. Weiss, who has substantial experience in this very field, that the applicant[s] [have] completely failed to show a good faith attempt to use other alternative technology to avoid the need for a tower and/or to identify and evaluate other available least intrusive alternatives, and/or [have] completely failed to consider less sensitive sites, alternate system designs, alternate placement of this facility, or locating it elsewhere.

 

Weiss was not qualified or accepted by the Board as an RF expert. The Board also found that in weighing the positives and negatives, the proclaimed positive advantages had not been established and, therefore, were completely outweighed by the negative criteria.

Negative criteria were found by the Board. The location of the monopole "on this historic type cemetery," the visual impact, "the potential impact from water flows, erosion, and runoff from the proposed facility into the adjoining 'ditch,' which constitutes wetlands on the site." The finding of negative impact from runoff into wetlands was addressed by the applicants' expert Bryan Reiser, P.E. who testified that the plans are subject to the approval of the New Jersey Department of Environmental Protection and that any required changes would be brought back before the Board. Additionally, using the conservative assumption of 100 percent impervious surface, and a range of storm strengths, he concluded that the compound would not have any significant impact on storm water management. A Board member questioned the calculated increase of water run-off, which was about two-and-one-half times, as significant, but the Board engineer, Mr. Lai, stated that the increase was "pretty small," considering the typical run-off volume.

The Board stated that since the project is not a permitted use, it can be "located and utilized only when there is no other alternative available to provide for such needed use or facility, and when it cannot be otherwise accomplished in a less intrusive manner."

The Board denied the application and memorialized its decision on December 16, 2010.

 

D. Trial and Decision

Applicants filed a complaint in lieu of prerogative writ in the Superior Court, Law Division, asking the trial judge to set aside the Board's action and declare that they were entitled to approval of their application. The trial judge heard oral argument on the matter and issued a written opinion on January 12, 2012, dismissing applicants' complaint. It is from that order that applicants appeal.

The trial judge determined that the applicants "failed to demonstrate that there is a significant gap in coverage." In arriving at this finding of fact, the trial judge relied on the "fact" that "Board members and community members alike stated that there are no coverage problems in the area that would be served by construction of this wireless telecommunications facility." In arriving at this conclusion, the trial judge relied on anecdotal, unsworn lay opinion rather than expert testimony supported by scientific data. The judge further supported her decision by noting that the "tower would only serve about 1200 people."

Additionally, the judge noted that even if it were proven that a significant gap in coverage existed, applicants failed to establish that the project, in the residential zone, is the least intrusive means of closing the gap. Relying on New York SMSA, Ltd. v. Township of Mendham Zoning Board of Adjustment, 366 N.J. Super. 141 (App. Div.), aff'd o.b., 181 N.J. 387 (2004), the judge determined as a matter of law that "suitability of a telecommunications facility requires an applicant to show that the proposed facility would fill the gap in the least intrusive manner, and that the applicant made a good faith effort to investigate alternative technologies and alternative sites." The judge further determined that the applicants' conclusion that no such alternative site exists "must be based on competent expert testimony."

On appeal, applicants contend that the Board's resolution is fatally defective and is arbitrary, capricious, and unreasonable; that they proved the positive and negative criteria; and that the Township's failure to adopt an ordinance in conformity with its master plan recommendation for the location of wireless facilities make the cemetery site presumptively suited.

II.

Certain principles guide our consideration of the issues on appeal. "[W]hen reviewing the decision of a trial court that has reviewed municipal action, [this court is] bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004); see also CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 577 (App. Div. 2010). Thus, our task on appeal is limited to the substantial evidence standard. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion); see also N.Y. SMSA, L.P. v. Bd. of Adj. of Bernards, 324 N.J. Super. 149, 165 (App. Div.) (holding that a board's findings must be supported by substantial evidence in the record), certif. denied, 162 N.J. 488 (1999).

It is a well-settled principle of land use law that "a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)); see also New York SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Ibid. In addition, "[b]ecause variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant." Weehawken, supra, 370 N.J. Super. at 331 (citing Nynex Mobile Commc'ns Co. v. Hazlet Twp. Zoning Bd. of Adj., 276 N.J. Super. 598, 609 (App. Div. 1994)). "[A]n applicant bears a heavy burden in overcoming a denial." Pierce Estates Corp. v. Bridgewater Zoning Bd. of Adj., 303 N.J. Super. 507, 515 (App. Div. 1997) (internal quotation marks omitted). In this case, we conclude that the evidence presented in support of the applicants' challenge to the Board's decision is compelling.

In order to obtain a variance pursuant to N.J.S.A. 40:55D-70(d), an applicant must demonstrate both the positive and negative criteria. Sica v. Bd. of Adj. of Wall, 127 N.J. 152, 164 (1992); see also Sprint Spectrum, L.P. v. Zoning Bd. of Adj. of Leonia, 360 N.J. Super. 373, 386 (App. Div. 2003). Our Supreme Court has declined to treat wireless telecommunication facilities as inherently beneficial uses. See Cell South, supra, 172 N.J. at 90-91; Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 328-31 (1998). Accordingly, wireless carriers seeking to construct monopoles must satisfy the positive criteria to obtain a use variance under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, which requires an applicant to prove that there exist "special reasons" to allow departure from zoning regulations. See Cell South, supra, 172 N.J. at 90. We have applied the Sica balancing test in residential districts and concluded that minimal visual impact would not constitute a substantial detriment. Ocean Cnty. Cellular v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 533-34 (App. Div.), certif. denied, 175 N.J. 75 (2002).

In applications for variances or site plan approval concerning telecommunications facilities, we have held that the positive criteria are satisfied where the carrier is licensed by the FCC and proffers credible testimony establishing that a coverage gap exists. See Weehawken, supra, 370 N.J. Super. at 340. Here, each applicant holds the appropriate FCC licenses. In determining whether the positive criteria were satisfied, courts have taken into consideration a variety of factors, including: the zoning district; whether the site is centrally located; whether the site already accommodates a monopole; whether competent expert testimony establishes that the existing capacity is inadequate; whether propagation maps demonstrate an inadequacy of signal strength; whether the site redresses a carrier's lack of capacity; and whether there are viable alternative sites. Id. at 121-22. In considering expert testimony in favor of the application, it is important to note whether there is any competing evidence by an interested party or the board to counter the applicant's expert testimony. See Ocean Cnty. Cellular, supra, 352 N.J. Super. at 526.

With respect to witness credibility:

 

Zoning boards may choose which witnesses, including expert witnesses, to believe. However, to be binding on appeal, that choice must be reasonably made. In addition, the choice must be explained, particularly where the board rejects the testimony of facially reasonable witnesses. The board cannot rely upon unsubstantiated allegations, nor can it rely upon net opinions that are unsupported by any studies or data.

 

[Bd. of Educ. of Clifton v. Zoning Bd. of Adj. of Clifton, 409 N.J. Super. 389, 434-35 (App. Div. 2009) (citations omitted); see also Weehawken, supra, 370 N.J. Super. at 338.]

 

Here, the Board members rejected the testimony of applicants' RF expert, Pierson, and credited the "testimony" of Board members and neighbors that there was no gap in coverage, without offering any rational explanation or scientific basis to support that finding. Pierson provided testimony that was "clear, cogent, and informative." Weehawken, supra, 370 N.J. Super. at 338. The Board's summary rejection of applicants' expert's opinion and blind acceptance of the Board members' and neighbors' "facts" failed to comply with governing law. Additionally, the Board rejected the applicants' and its own expert's testimony concerning storm water management. Therefore, the Board acted in an arbitrary, capricious, and unreasonable manner in crediting those "facts."

The trial judge also erred in discrediting applicants' expert's opinion and in summarily accepting the unsworn, unsupported statements of Board members and neighbors attesting to the lack of a gap in coverage.

While there is "no bright line test" for a gap in service, the gap must be more substantial than "de minimis dead spots within a larger service area." Mendham, supra, 366 N.J. Super. at 161. Mendham characterizes the required gap as "significant," utilizing principles developed for cases arising under the federal Telecommunications Act of 1996, specifically 47 U.S.C.A. 332(c)(7)(B)(i)(II). However, Weehawken, decided exactly five months later, states, "[n]o case interpreting and applying New Jersey's MLUL has required a wireless communications carrier to prove the existence of a significant gap in coverage in order to satisfy the positive criteria of N.J.S.A. 40:55D-70(d)." Weehawken, supra, 370 N.J. Super. at 336.

Viewing the propagation maps and other evidence provided, it is clear that a gap existed and was appropriate to serve as the predicate for the applicants' determination of particularized site suitability.

Finally, in discussing the positive criteria for the grant of a use variance for a cell tower, the trial judge, citing Mendham, supra, 366 N.J. Super. at 149-50, stated that "[s]uitability of a telecommunications facility requires an applicant to show that the proposed facility will fill the gap in the least intrusive manner, and that the applicant made a good faith effort to investigate alternative technologies and alternate sites." This was an incorrect statement of the applicable law. Mendham did not involve the positive criteria for the grant of a use variance. Instead, as previously stated, Mendham involved a claim under the Federal Telecommunications Act, 47 U.S.C.A. 332(c)(7)(B)(i)(II). See supra, 366 N.J. Super. at 158-62. Applicants do not rely upon the Federal Telecommunications Act in this action challenging denial of their application for a use variance and site plan approval for a cell tower. Therefore, the trial judge erred in applying the test set forth in Mendham in determining whether applicants had satisfied the positive criteria for the grant of a use variance.

The correct test for determining whether an applicant for a use variance to construct a cell tower has satisfied the positive criteria for a use variance is the one set forth in Smart SMR, supra, 152 N.J. at 332, that "the use is particularly suited for the proposed site." We have previously indicated that this test may be satisfied without necessarily showing that a proposed site for a telecommunications facility would be the "least intrusive" site. In Ocean County Cellular, supra, 352 N.J. Super. at 529, we observed that "[t]o require the applicant to disprove the 'possible existence' of [less intrusive alternative] sites may be a daunting, if not impossible task because of the uncertainty as to the availability of such sites, as well as the physical variables that may render them unsuitable." However, "a provider's reasonable and good faith effort to find an alternative, less-intrusive site is clearly relevant to the 'particularly suited' analysis." Id. at 528; see also Leonia, supra, 360 N.J. Super. at 390-91. The record indicates that applicants demonstrated such an effort.

The trial judge's conclusion that there was adequate evidence in the record to support the Board's finding was clearly erroneous. "Due to the Board's reluctance to properly consider the evidence in the record, our appropriate resolution is not a remand, but an order directing approval of the variances and site plan." Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Bd. of Adj., 352 N.J. Super. 575, 610 (App. Div.), certif. denied, 174 N.J. 543 (2002) (citations omitted).

We vacate the order of dismissal in the Law Division and reverse and remand for the entry of an order requiring the Board to approve applicants' application.

R

eversed and remanded.

1 The monopole structure would actually be 120 feet tall and the additional five feet would consist of camouflaging fiberglass branches.

2 The R-1 Zone permits one-family dwellings, customary and conventional limited farming operations, municipal parks and playgrounds, buildings and uses which are deemed appropriate and necessary by the township council, golf clubs, and certain public utility uses as a conditional use.

3 T-Mobile would own the monopole and is the lead on the project.

4 The surrounding towns were Plainfield, South Plainfield, and Edison. Plainfield is located to the west of Scotch Plains. South Plainfield is located south of Plainfield and southwest of Scotch Plains. Edison begins south of Scotch Plains. Parts of these towns are within the coverage gap and the construction of the tower could affect them visually as well.

5 Dr. Bruce Eisenstein, the Board's engineer, explained that basic principles of engineering allow for extrapolation of radio waves based on a sample because propagation patterns are well understood. Secondly, he noted that the wireless signal fluctuates constantly in a phenomenon called "fading," and also fluctuates based on weather conditions and the time of the year. For example, signal travels differently in the summer with full foliage compared to the fall with dropping leaves. As a result, the static data collected on a given day in a given place through the drive test must be corrected by a margin of safety to account for the random fluctuations. By contrast, the carriers create propagation maps using predictive compu ter modeling, by over laying the calculated median signal with topographical maps and by then calibrating the map further through physical drive tests. Dr. Eisenstein prefers this mode of modeling to drive tests alone, which only capture transitory, not median, signal measures. Pierson also verified his coverage gap map by comparing the propagation models of the existing cell sites in the area.

6 When a member of the public probed further about what "not an option" meant, Pierson explained that after the coverage gap was identified by the carriers' engineering experts, their real estate professionals explored available options within that area by process of elimination, starting from industrial and commercial zones, to local business, to residen tial. These professionals determined that the ceme tery location was the optimal, if not the only, feasible location from among other properties and existing structures explored.