GAELIC COMMUNICATIONS LLC v. COMBINED PLANNING BOARD/ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF MILFORDAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
GAELIC COMMUNICATIONS, LLC,
COMBINED PLANNING BOARD/ZONING BOARD
OF ADJUSTMENT OF THE BOROUGH OF
GAELIC COMMUNICATIONS, LLC,
COMBINED PLANNING BOARD/ZONING BOARD
OF ADJUSTMENT OF THE BOROUGH
KATHLEEN YOUNG, LILLY ZIMMERMAN,
JOSEPH HUBBERT, VIRGINIA HUBBERT,
WILLIAM TRAUCH, MARIAN TRAUCH,
ALAN ZABOWSKI, and JILL ZABOWSKI,
November 26, 2014Argued September 15, 2014 Decided
Before Judges Sabatino, Simonelli, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-496-12.
David R. Pierce argued the cause for appellant/cross-respondent (A-5136-12) and respondent (A-5170-12) (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Mr. Pierce and Denise M. Del Priore, on the brief).
Joseph A. O'Neill argued the cause for respondent/cross-appellant (A-5136-12) and respondent (A-5170-12) (Garofalo & O'Neill, P.A., attorneys; Mr. O'Neill, on the brief).
Gaetano M. De Sapio argued the cause for appellants (A-5170-12) (Law Offices of Gaetano M. De Sapio, attorneys; Mr. De Sapio, of counsel and on the brief; Michael A. De Sapio, on the brief).
In 2011, Gaelic Communications, LLC (Gaelic) applied to the Combined Planning Board/Zoning Board of Adjustment of the Borough of Milford (Board) for use, bulk and height variances, as well as final site plan approval, to construct a 150-foot wireless communications tower in the Borough of Milford (Borough). After hearing testimony over nine days, the Board voted unanimously to deny Gaelic's variance applications.1 Gaelic filed a complaint in lieu of prerogative writs in the Law Division appealing the Board's decision. Eight resident property owners (objectors) filed an answer and were granted status as intervenors. All parties appeared for oral argument.
On May 17, 2013, the trial court reversed the Board's denial of Gaelic's use variance application, and remanded the matter to the Board for full site plan review, with the caveat that the objectors "may attempt to provide that another site is actually superior."
The Board and the objectors filed separate appeals of the May 17, 2013 order, which we have consolidated for the purposes of this opinion. Gaelic filed a cross-appeal, objecting to the court's bifurcation of the site plan and use variance applications. Gaelic also challenges the court's decision to require additional site selection testimony on remand. For the reasons that follow, we affirm.
In 2007, Matthew Bartlett, a site acquisition consultant for Verizon Wireless (Verizon), approached the Borough regarding the construction of a communications tower. Verizon did not have a tower in the Borough, and thus had a large coverage gap in the area. Verizon identified seven potential sites for the tower, four of which were owned by the Borough. Verizon identified a Borough-owned ball field as their preferred site for the new tower, and sent a letter to the Borough seeking to lease that space. After meeting with Borough representatives, Bartlett was told by the Borough Clerk that the Borough would not release the ball field for bid but encouraged Verizon to consider a different Borough-owned property, on which a sewage treatment plant was located.
Of Verizon's seven proposed sites, the Borough's governing body2 chose to release only the sewage treatment property for bidding, and Verizon, Gaelic, and New Cingular Wireless, d/b/a AT&T (AT&T) all submitted bids. In February 2009, Gaelic was declared the winning bidder.
As the tower Gaelic sought to construct required several variances from Borough zoning ordinances, Gaelic applied to the Board for: (1) a use variance to allow the tower in a residential (R-2) zone; (2) a height variance to permit the tower to exceed the maximum permissible height; (3) a bulk variance to permit the tower setback from the nearest residence to be less than the minimum allowed; (4) a bulk variance to allow the equipment compound to exceed the maximum square footage in size; (5) conditional use approval; and (6) final site plan approval.
At a hearing before the Board, Gaelic presented testimony on behalf of two carriers, Verizon and AT&T. Radio-frequency (RF) engineer Yvan Joseph testified on behalf of AT&T, stating that its current tower facility will be decommissioned due to environmental reasons and will result in a significant gap in AT&T service coverage for eighty-five to ninety percent of the Borough. He further stated that the proposed site would provide Smart 911 services, which allow first responders to receive the location of nearby 911 callers.
RF engineer Chelsea Gnesin testified on behalf of Verizon, stating that Verizon does not deem the coverage reliable in the Borough because they do not have an antenna there. Gnesin testified that the new tower would provide coverage to most of the residents of the Borough.
Bartlett testified as to Verizon's site acquisition and selection process. He described the seven sites Verizon examined for the tower, and explained why the sewage plant was ultimately chosen. Bartlett testified that while Verizon initially identified seven possible sites for the tower, it took no further action on the other sites once the Borough chose to release only the sewage plant property for bidding.
Site planning engineer Christopher Nevill testified that after the Board expressed concerns that the tower at the sewer plant would be close to some residences, Gaelic received the Borough's permission to place the tower farther away from those residences.
Planning expert David Karlebach testified on behalf of Gaelic that: (1) using the proposed site would serve the general welfare; (2) the site is particularly suited for the proposed telecommunications use; (3) the tower is needed to relieve inadequate signal strength and service gaps; and (4) in addition to Verizon and AT&T, the tower could accommodate additional carriers in the future. Karlebach noted that the only negative impact of the site is the effect of the tower's height on the area's aesthetics.
The objectors presented the testimony of planning expert Tamara L. Lee, who testified that the proposed tower would not serve the general public because it would not provide new coverage, only improved reliability, which she termed "a convenience." Lee also opined that the site does not support the objectives of the Borough's master plan or the land use law, is not particularly well-suited for its proposed use, and its detriments cannot be mitigated.
After voting unanimously to deny the application, the Board adopted a resolution finding that Gaelic had demonstrated three positive criteria for the site: (1) that AT&T and Verizon were licensed by the Federal Communications Commission (FCC); (2) that there was a gap in wireless coverage that the proposed facility would minimize; and (3) that the proposed facility promotes the general welfare. However, the Board found that Gaelic had failed to present evidence that an alternate site, the Fawnwood property, was not available or not less intrusive. The Board found Gaelic's failure to present evidence on the Fawnwood property tantamount to failing to carry its burden on proving that the sewage plant site was "particularly suitable" for a telecommunications tower, and denied its application.
The May 17, 2013 order of the Law Division reversing the Board's decision was accompanied by a written decision consolidated with another cell tower case, Mesa v. Zoning Board of Adjustment of Lebanon Twp, No. L-475-12 (Law Div. May 17, 2013).3
The Board claims that the trial court committed three legal errors: (1) improperly applying a de novo standard of review and making findings of fact that are unsupported by the evidence; (2) misinterpreting and misapplying the law; and (3) violating its due process right. The objectors present similar arguments, claiming that the Law Division "disregarded the factual findings of the board and conducted a de novo review of the facts, substituting its own observations for that of the board."
A. Standard of Review
Appellate courts conduct the same review of municipal board decisions as trial courts. Bressman v. Gash, 131 N.J. 517, 529 (1993). Generally, we accord "substantial deference" to municipal board decisions, and will only overturn such decisions if they are "so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ibid. Indeed, courts must give greater deference to a variance denial than a grant because variances tend to impair sound zoning. Cerdel Constr. Co. v. Twp. Comm. of East Hanover, 86 N.J. 303, 307 (1981).
Substantively, a reviewing court must determine whether the "board's decision comports with the statutory criteria and is founded on adequate evidence." Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990). The statute at issue is N.J.S.A. 40:55D-70, which governs applications for use, height, and bulk variances, and is to be strictly construed. Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 101 (2011).
We must look to the requirements of N.J.S.A. 40:55D-70 to determine whether the Board's analysis was proper. N.J.S.A. 40:55D-70(d) provides that a Board may
In particular cases for special reasons, grant a variance to . . . permit: (1) a use or principal structure in a district restricted against such use or structure; . . . (4) an increase in the permitted floor area ratio . . . ; or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district[.]
. . . .
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
Our Supreme Court established a four-step test for boards to follow when deciding whether to grant a variance under the statute: (1) identify the public interests at stake; (2) identify the detrimental effects that would ensue from a grant; (3) when applicable, impose conditions on the proposed use to mitigate detriments; and (4) weigh these "positive and negative criteria" to decide whether a grant would cause a substantial detriment to the public good. Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 165-66 (1992).
"Under the positive criteria, the applicant must establish 'special reasons' for the grant of the variance." Id.at 156. Our case law has identified three acceptable "special reasons": (1) where the proposed use inherently serves the public good, such as a hospital or school; (2) where the property owner would suffer "undue hardship" if the variance were denied; and (3) where the use would serve the general welfare because the proposed site is "particularly suitable" for the proposed use. Nuckel, supra, 208 N.J.at 102 (citations omitted).
Telecommunications facilities are not inherently beneficial uses. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 331 (1998). That said, the issuance of an FCC license "should suffice for a carrier to establish that the use serves the general welfare." Id. at 336.
Even with an FCC license, however, "the applicant must demonstrate that the proposed telecommunications facility is particularly suited for the proposed site, that is, the need for the proposed use at the particular location chosen by it." Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 523 (App. Div.), certif. denied, 175 N.J. 75 (2002). The need for the site should be demonstrated through expert testimony. Id. at 528-29. Moreover, "[r]elevant to the determination of the suitability of a telecommunications site" is the federal Telecommunications Act's mandate that a municipality "shall not prohibit . . . the provision of personal wireless services." Fair Lawn, supra, 152 N.J. at 332 (quoting 47 U.S.C.A. 332(c)(7)(B)(i)(II)). Finally,
In considering whether the applicant had satisfied the "particularly suited" standard, we [have] noted that cases have previously found particular suitability when (1) the site is zoned for industrial use; (2) the site is centrally located in the carrier's search area; (3) the site already accommodates a monopole; (4) competent expert testimony establishes that existing capacity is inadequate; (5) propagation maps demonstrate an inadequacy of signal strength; (6) the site redresses a carrier's lack of capacity; or (7) viable alternate sites are not available.
[N.Y. SMSA L.P. v. Bd. of Adjustment of Twp. of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004).]
The variance applicant must then satisfy the negative criteria. Fair Lawn, supra, 152 N.J. at 332. "The negative criteria require proof that the variance can be granted without substantial detriment to the public good and that it will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Sica, supra, 127 N.J.at 156. Only substantial impairments suffice. Ibid.
Appellant and the objectors argue that the trial court failed to apply the proper Sicabalancing test, and instead conducted a de novo review complete with new factual findings unsupported by the record. We disagree.
The Law Division began with the negative criteria, describing and then disproving each of the proposed site's detriments with record evidence
The [Board] in its resolution found the site to be aesthetically intrusive, even though it was located on the parking lot of a sewer plant, and was surrounded essentially by industrial uses and vacant lands, because one part of the neighborhood included 17 residential dwellings, many of which would be visually impacted. . . . The Board also faulted the site for safety reasons since the tower as proposed exceeded the setback distances from the nearest residence, although there was absolutely no valid evidence . . . presented by an expert that a tower fall down represented an actual safety concern.
As to safety, the trial court noted unrebutted expert testimony that the proposed structure met all applicable codes and was designed to collapse in on itself. The judge stated that allegations regarding a tower collapse were "purely fanciful" and "pure speculation without any factual foundation whatsoever." He found that the Board's consideration of this alleged safety issue especially when supported only by "inflammatory" media evidence and not expert testimony was not credible. The record supports this conclusion.
As to aesthetics, the court found that "it would be arbitrary for the Board to deny this use pursuant to the Sicabalancing test based on aesthetic criteria." The judge noted that although the tower will "have a visual impact on nearby residences," the site otherwise sits in the parking lot of a sewage plant, which is adjacent to "abandoned and other industrial land." The court found that "notwithstanding the residential designation, this is a highly industrialized site in an area which in general partakes of an industrial character." After reviewing testimony and photographs submitted into evidence, the court found the aesthetic intrusion "is simply not dramatic. While the tower will not enhance the R-2 neighborhood it does not appear to effect [sic] it substantially enough to negate this site." We find that the trial court's conclusion that the limited aesthetic impact should not negate the positive aspects of this site, and in turn, its conclusion that the Board's denial on aesthetic grounds was arbitrary, is supported by substantial and credible record evidence.
As to positive criteria, the court found that the record established that the site would serve the general welfare because of the existence of FCC licensing, the location of service gaps in the Borough, and the need for the Borough to remedy those gaps. We note that the location of service gaps and need for remedy were supported by unrebutted expert testimony.
The court also found the site particularly suitable to the proposed use given the available options. The court noted that it has a conforming lot size, an adjacent industrial use (a defunct paper mill), is in a redevelopment and flood plain area, and in a sewage plant parking lot. It was agreed that such detriments as noise, glare, and radiation were inapplicable, and both the Board and trial court discounted any testimony relating to property values as overly speculative. The judge found the fact that the site is in a residential zone insufficient to render it unsuitable, "given its industrial character." He further stated that the tower would not sufficiently diminish the neighborhood's aesthetics, noting that there are trees and buildings surrounding the proposed tower location which reduce the visual impact. The court concluded that "[t]he record reflects that the site clearly meets the Fair Lawn criteria for suitability, and no board could find otherwise on the evidence."
In its final balancing of the Sicapositive and negative criteria, the court held that
Given the need for the facility, and that the only actually proffered alternate site is one located in a purely residential area, the court finds that the balancing test could only come out one way, that is, that the need for the use at this particular location outweighs the aesthetic defects that undoubtedly exist.
The trial court unequivocally and thoroughly applied the proper Sicabalancing test in reviewing the Board's resolution. We find no evidence that the court conducted a de novo review, made new factual findings, or relied on anything other than credible record evidence in making its determination.
B. Site Selection Law
Appellant and the objectors argue that the Law Division misinterpreted and misapplied the law regarding site selection. The trial court found that once the Borough "steered" Verizon to the sewage plant site, Verizon was entitled to "cease its site investigation with respect to suitability and the positive criteria, subject only to satisfaction of the negative criteria under the [Sica] balancing test." Appellant and the objectors argue that, instead, a variance applicant must show that (1) it made a good faith, reasonable investigation into alternative sites, and (2) the proposed site is the "least intrusive site that can fill the [service] gap." We disagree with both the trial court and appellant/objectors, and instead follow existing precedent.
In Ocean County Cellular, we suggested that "a provider's reasonable and good faith effort to find an alternative, less-intrusive site is clearly relevant4 to the 'particularly suited' analysis." 352 N.J. Super. at 528. The Ocean County Cellular court then tempered that suggestion with a caution
What concerns us, however, is the prospect of arbitrary action based on the court's suggestion in Bernards Twp. that a telecommunications provider must negate the possible existence of other sites that might have served better and been less intrusive but which were not discussed. This observation might be wrongly interpreted as giving zoning boards carte blanche power to reject an application based on conjecture that a "possible" alternative site is both suitable and available. To require the applicant to disprove the "possible existence" of these 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.
[Ocean Cnty. Cellular, supra, 352 N.J. Super. at 529 (footnote and citations omitted).]
Here, the Law Division properly acknowledged and analyzed this controlling law
[A]n applicant for a cell tower variance must generally speaking show that it has chosen a least intrusive site. As explained by the Appellate Division in [Ocean Cnty. Cellular], this obligation does not mean that telecommunications must negate the possible existence of other sites that might have served better. Thus, while the less intrusive alternative site analysis is relevant to whether an applicant satisfies the variance criteria for particular suitability of a site, N.J.S.A. 40:55D-70(d), that analysis has its limits.
One specific limit mentioned in the Ocean County Cellular case is where all the alleged alternative sites would also require a variance . . . .
. . . .
This Court also ruled that [it would be improper to] "giv[e] zoning boards carte blanche power to reject an application based on conjecture that a possible alternative site is both suitable and available." That is precisely what occurred here.
The Law Division thus aptly recognized that the less-intrusive alternative site analysis was relevant, but did not require Gaelic to disprove the existence of less-intrusive alternative sites. Ocean Cnty. Cellular, supra, 352 N.J. Super. at 529. It correctly pointed to the Board's improper use of "carte blanche power" to deny the application based on mere conjectures about an alternative site, the Fawnwood property.
According to both the Board and the Law Division, the Fawnwood site is in a purely residential zone and would place the tower "literally in someone's [three-acre] backyard." The trial court noted that the objectors' photos indeed show a private home on the Fawnwood site. Bartlett testified that the Fawnwood property was initially considered due to its higher elevation, but was rejected because "[i]t was a residential property . . . . Just due to the situation of where the property is located, it would be in someone's backyard literally in someone's backyard." He also testified that Verizon ceased its investigation into Fawnwood once the Borough chose to release only the sewage plant site for bidding.
We reject the Board's argument that, because Bartlett was not qualified as an expert, "he could not quantify nor properly testify concerning the planning impacts relating to the proposed site and the Fawnwood site." Bartlett testified that Fawnwood was rejected because it was a residential property and in close proximity to the backyard of a resident. He testified as a fact witness and provided a reasonable explanation as to why Verizon rejected the Fawnwood site. There was no need to present expert opinion testimony to establish this fact.
Based on Bartlett's testimony and the Borough's choice to release only the sewage plant for bidding, the court rejected the Board's conclusion that Gaelic did not make a reasonable inquiry about the Fawnwood site
The Board used this alleged failure of investigation as its principal reason of denying the variance.
That conclusion is arbitrary and capricious. First, as noted above, the Council had affirmatively guided the plaintiff to the proffered residential site. That site was adjacent to a sewer plant, of all things, and surrounded by industrial activity. To say that the applicant should have instead sought relief on a purely residential site elsewhere in town smacks of the kind of unrealistic expectation that the Ocean County Cellular court decried.
[The Borough] defied our Supreme Court's direction in [Fair Lawn] to cooperate in providing sites and made such defiance complete and absolute when [the Board] told Gaelic to seek another use variance on a site whose character is even more residential. . . .
. . . .
The Court can find nothing in the record to suggest that the Borough made any effort to have the applicant explore the Fawnwood/Reese site beyond those activities it had already undertaken. That lack of initiative strongly contrasts with other actions by other boards in this county of which the Court is aware and the specific requests recounted in some of the case law about exploring other sites. Here, the Board instead simply made some comments, never suggesting, prior to the actual deliberation and vote, that the application might be denied on the basis of failure to spend more time investigating the Fawnwood site. This circumstance, combined with inherent improbability of the Fawnwood site, since it is simply another residential property, supports this court's conclusion that the ultimate denial in this case was arbitrary, capricious and unreasonable.
The Board's conclusion that Gaelic did not make a reasonable and good faith effort to find an alternative, less-intrusive site is not supported by the record. We agree with the Law Division's conclusion that the Board's decision in that regard was arbitrary, capricious, and unreasonable.
The Law Division found that once the Borough "steered" Verizon to a particular site, Verizon was entitled to "cease its site investigation with respect to suitability" of alternative sites. We do not endorse the Law Division's specific observation that the decision by the Borough to release the sewage plant site for bidding absolved the applicant of any further obligation to demonstrate particular suitability. We also reject the Board's claim that the decision "improperly deprived the Board of Adjustment of any substantive role in the approval of use variances for wireless communication facilities." The Borough's preference on site location is entitled to consideration by the Board, but it is not dispositive. See Medici v. BPR Co., 107 N.J. 1, 19 (1987) (N.J.S.A. 40:55D-70 vests exclusive authority to grant or deny variances to municipal boards of adjustment); Houdaille Constr. Materials, Inc. v. Bd. of Adjustment of Tewksbury Twp., 92 N.J. Super. 293, 300 (App. Div. 1966) (municipality may not limit or condition power of its board of adjustment).
However, the identification of the sewage plant site by the Borough was only one of many factors relied upon by the court in reaching its conclusion. The court also determined that the Board's finding that the Fawnwood site was less intrusive was arbitrary and capricious, and that the detriments of the sewage plant site did not substantially impair the public good. The court's conclusions are amply supported by controlling law and the record.
C. Due Process
Finally, the Board claims that the Law Division violated its due process rights "when it improperly based its decision, in part, on the requirements of the Telecommunications Act of 1996 (the Act), 47 U.S.C.A. 332(c)(7)(B)(iii)."
In its complaint, Gaelic had originally pled a violation of the Act. In its opinion, the Law Division noted that Gaelic had agreed to forego any claim under the Act.
The Board relies on three references made by the Law Division to the Act in arguing that the Law Division partially based its decision on the Act. These references to the Act by the Law Division were drawn from the Supreme Court's decision in Fair Lawn, where the Court discussed how the Act is an additional federal "avenue of relief" for carriers whose tower applications were denied by local boards. Fair Lawn, supra, 152 N.J. at 326. To determine whether a use variance should have been granted, the Court discussed the Act as "[g]uiding us in resolving the conflict[.]" Id. at 315. The Court, in concluding that the tower "serves the general welfare and satisfies the positive criteria" under N.J.S.A. 40:55D-70(d), found that
Relevant to the determination of the suitability of a telecommunications site is the Telecommunications Act's mandate that "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services."
[Id. at 332. (quoting 47 U.S.C.A. 332(c)(7)(B)(i)(II)).]
As in Fair Lawn, the issue here was whether the Board erred in denying Gaelic's variance application pursuant to N.J.S.A. 40:55D-70. Specifically, the Law Division took issue with the Borough directing Gaelic toward the site and then denying the variance, invoking the Court's discussion in Fair Lawn of cooperation and the Act
The Telecommunications Act now requires that local governments not prohibit or have the effect of prohibiting, the placement, construction, or modification of mobile communication facilities within their borders. . . .
. . . .
The development of a wireless system that does not adversely affect surrounding property calls for cooperation between carriers and land use regulators. . . .
. . . .
For the present, we believe it is more consistent with the existing federal and state statutes to recognize a harmonious role for local land use agencies in the location of those facilities. That recognition should permit telecommunications carriers to erect needed telecommunications facilities on suitable sites.
[Id. at 334-36.]
The discussions in Fair Lawn were not limited to federal violations under the Act, but as the Court states, are relevant to the state law standard of particular suitability. Id. at 332; Ocean Cnty. Cellular, supra, 352 N.J. Super. at 523. The Law Division did not hold that a violation of the Act had taken place, nor even suggest so. Instead, it determined that the Board erred in denying the variance, considering the guiding principles of the Act established by the Fair Lawn Court.
Substantively, "due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe v. Poritz, 142 N.J. 1, 106 (1995). The Board had notice on all these issues and was heard. The Board's claim that the Law Division denied it due process is wholly without merit.
In its cross-appeal, Gaelic challenges the Law Division's decision to remand the matter to the Board for site plan approval hearings. Gaelic claims that the Law Division erred in suggesting "that the objectors had the ability to contest the issuance of the bid for the municipal site by requiring that the Borough of Milford, a non-party, needed to appear at a subsequent board hearing to explain the site selection process." Gaelic also claims that site plan approval hearings are unnecessary because there was "considerable discussion" regarding Gaelic's site plan, and it was only the Board who failed to rule on the site plan in its resolution.
In its opinion explaining the need for a remand as to the site plan issues, the Law Division found
not only that the decision of the Board must be overturned, but that the requested variances must all be granted, and site plan review be immediately undertaken subject to the following
. . . .
It is evident the board of adjustment will have to have hearings on a site plan application. It is also obvious during such hearings the board would have to take into account the negative criteria. N.J.S.A. 40:55D-76(b). See Allocco and Lucarrelli v. Twp. of Holmdel, 299 N.J. Super. 491 (L. Div. 1997). Thus, the Board is the appropriate venue for such review, especially since the Board does proceed on evidence on a record.
Although the Court has found the site to be particularly suited for use by virtue of its designation by the Borough, nonetheless under Hills of Troy objectors may attempt to show that the council's choice of the sewer plant site was arbitrary since Fawnwood or another site were demonstrably superior. It is expected that the Borough Council will not remain silent at such hearing, but will take responsibility for explaining its decision, at least by a written submission.
N.J.S.A. 40:55D-7 defines "site plan" as a development plan
on which is shown (1) the existing and proposed conditions of the lot, including but not necessarily limited to topography, vegetation, drainage, flood plains, marshes and waterways, (2) the location of all existing and proposed buildings, drives, parking spaces, walkways, means of ingress and egress, drainage facilities, utility services, landscaping, structures and signs, lighting, screening devices, and (3) any other information that may be reasonably required in order to make an informed determination pursuant to an ordinance requiring review and approval of site plans by the planning board . . . .
A municipal board of adjustment has the power to grant a site plan approval where it is ancillary to an application for a variance. N.J.S.A. 40:55D-76(b); Cox & Koenig, N.J. Zoning & Land Use Admin. 387 (2014). The applicant may choose to submit the application for the site plan approval along with its variance application; or may submit the site plan approval and variance applications separately (a bifurcated application), and the variance approval will be conditioned on the subsequent approval site plan application. N.J.S.A. 40:55D-76(b); Cox & Koenig, supra, at 361-62.
Among other things, the Borough's zoning ordinance requires in a final site plan application
site boundaries; tower location; existing and proposed structures, including accessory structures; existing and proposed ground-mounted equipment; vehicular parking and access; and uses, structures and land use designations on the site and abutting parcels. . . .
A landscape plan drawn to scale showing proposed landscaping, including species type, size, spacing, other landscape features and existing vegetation to be retained, removed or replaced . . . .
Elevations of the proposed tower and accessory building generally depicting all proposed antennas platforms, finish materials and all other accessory equipment.
[Milford Borough, N.J., Code 190-87.]
Here, Gaelic chose to submit a site plan review application with its variance application. On appeal, Gaelic claims that the Board improperly bifurcated the site plan approval from the use variance application. The Board did no such thing, nor could it. However, the Board's resolution did fail to make any findings as to the site plan application. It may be reasonable to assume the Board would have denied the site plan, given its decision, but the Board failed to articulate as much.
The transcripts of the Board hearings reveal considerable discussion of important details such as site boundaries, the tower location, the equipment compound, vehicular parking and roads, the proposed landscaping, elevations of the proposed tower and equipment compound, platforms, and finish materials. Therefore, we are satisfied that the Law Division was correct in ordering a determination on the site plan review by the Board. However, whether the Board "will have to have hearings on the site plan" should be a decision left to the Board. As the Law Division noted, and unlike Hills of Troy Neighborhood Ass'n v. Township of Parsippany-Troy Hills, 392 N.J. Super.593 (Law Div. 2005), "a forum was provided by the Board" in this case. Yet, the Law Division found
However, the objectors nor the Board or the Borough ever provided any proofs with respect to the site. Instead the focus, erroneously as the Court has found, has placed the burden on Gaelic to provide reasons. However, under the Hills of Troy decision it should have been up to the objectors in the first instance to demonstrate that alternate sites were viable.
If the Board is satisfied with Gaelic's submissions and the existing testimony, it may render its decision on the site plan without further proceedings. The objectors already had a public forum to voice opposition and raise viable alternative sites. There is no burdenon the objectors to demonstrate the viability of alternate sites, if that is indeed what the Law Division meant to suggest, but only an opportunity. It is within the discretion of the Board to require additional submissions or testimony.
Finally, Gaelic claims that the Law Division improperly suggested that the Borough must appear on remand to explain its site selection process. In fact, the court suggested that ifthe objectors challenge the Borough's proposed site selection, "[i]t is expected that the Borough Council will not remain silent at such hearing, but will take responsibility for explaining its decision, at least by a written submission." Therefore, the Law Division was not directing the Borough to appear, but only to respond by written submission if challenged. We see nothing wrong with that.
1 As the request for a use variance was denied, the Board did not consider the issue of site plan approval.
2 Bartlett testified and the trial court found that it was the Borough Council's decision to release only the sewage plant for bidding.
3 The appeals in Mesa and this case were not consolidated on appeal, but they were argued back-to-back and we are issuing separate opinions in those cases on the same day.
4 The panel included a footnote to this statement that read, "The availability of alternative sites is relevant if the provider claims that the variance denial violates the [federal Telecommunications Act] because it has the effect of prohibiting the provision of personal wireless services." Id. at 528 n.4 (citing 47 U.S.C.A. 322(c)(7)(B)(i)(II)). Gaelic raised and ultimately dropped a Telecommunications Act claim below. See infra Part II.C.