NEW YORK SMSA, LIMITED PARTNERSHIP v. BOROUGH OF MIDLAND PARK ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW YORK SMSA, LIMITED

PARTNERSHIP, a New York Limited

Partnership, d/b/a/ Verizon

Wireless and T-MOBILE NORTHEAST,

L.L.C.,

Plaintiffs-Respondents,

v.

BOROUGH OF MIDLAND PARK ZONING

BOARD OF ADJUSTMENT,

Defendant-Appellant.

________________________________________________________________

July 3, 2014

Argued June 18, 2014 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7488-11.

Les Andersen argued the cause for appellant (Andersen & Holland, attorneys; Mr. Andersen, on the brief).

Richard L. Schneider and Gregory D. Meese argued the cause for respondents (Vogel, Chait, Collins & Schneider, P.C., attorneys for respondent New York SMSA Limited Partnership, d/b/a Verizon Wireless; and Price, Meese, Shulman & D'Arminio, P.C., attorneys for respondent T-Mobile Northeast, L.L.C.; Mr. Schneider and Mr. Meese, of counsel and on the joint brief; David H. Soloway, on the joint brief).

PER CURIAM

The Borough of Midland Park Zoning Board of Adjustment appeals from the June 27, 2013 order of the motion judge determining that the Board did not have the authority to require a change in location of a cellular phone tower permitted earlier by another judge. We affirm.

Plaintiffs New York SMSA Limited Partnership, doing business as Verizon Wireless (Verizon) and T-Mobile Northeast, L.L.C. (T-Mobile), sought approval for the construction of a cell tower. The joint application for variances and site approval was completed on May 12, 2010. Judge Menelaos W. Toskos reversed the Board's denial of the application and remanded to the Board to consider the imposition of reasonable conditions on the grant of site plan approval in an amended order dated May 7, 2012.

The Board appealed this decision without seeking a stay. While this appeal was pending, the Board decided on remand from Judge Toskos that the cell tower should be located on an alternate location within the site, more than 280 feet from the judicially-approved location, and approximately 76 feet from the nearest dwelling. Plaintiffs filed a successful petition for review of remanded proceedings before a new judge, seeking to avoid the delay of noticing residents again and obtaining the new variances that relocating the tower would entail. After the second judge granted plaintiffs' application to require the cell tower to be constructed in the original location, we affirmed Judge Toskos' order in a lengthy opinion. N.Y. SMSA Ltd. P'ship v. Borough of Midland Park Zoning Bd. of Adjustment, No. A-5070-11, (App. Div. December 11, 2013).

On appeal, the Board raises the following issues,

POINT I: REQUIRING LOCATION OF THE CELL TOWER IN THE ALTERNATE LOCATION IS A VALID EXERCISE OF THE BOARD'S SITE PLAN REVIEW AND IS A REASONABLE CONDITION PURSUANT TO JUDGE TOSKOS' ORDER.

POINT II: NOTICE OF THE PUBLIC HEARING FOR THE REMANDED PROCEEDINGS WAS SUFFICIENT TO CONFER JURISDICTION UPON THE BOARD.

POINT III: THE FINDINGS OF FACT AND CONCLUSIONS OF LAW EXPRESSED IN THE BOARD'S RESOLUTION ARE LEGALLY SUFFICIENT TO JUSTIFY THE BOARD'S DECISION TO LOCATE THE TOWER IN ALTERNATE LOCATION 2.

We review the Board's action using the same standard of review as the trial court. Fallone Props., L.L.C. v. Bethlehem Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). We must determine whether the "board's decision 'is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion.'" New Brunswick Cellular Tel. Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999) (quoting Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). The Board's decision must be supported by substantial evidence in the record, Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 27 (2013), not unsupported allegations or conjecture, Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 88 (2002).

The Board made no attempt to timely seek permission from Judge Toskos to change the cell tower location to a place first considered when plaintiffs made their original application before the Board in 2010.1 The Board argues that sufficient notice was given to residents of the remand hearing to allow the change in location of the cell tower. Notice must be given at least ten days prior to a hearing before the board, N.J.S.A. 40:55D-12, and must be given to the owners of all real property within 200 feet in all directions of the property in question, N.J.S.A. 55D-12(b). The notice must include: the date, time, and place of the hearing; the nature of the matters considered; the identification of the property by street address or by lot and block numbers; and the location and times at which any maps and documents for which approval is sought may be inspected as required by N.J.S.A. 40:55D-10(b). N.J.S.A. 40:55D-11. Noticed individuals may then appear at the hearing and voice their objections.

The Board's decision was arbitrary, capricious and unreasonable in demanding relocation of the cell tower for the first time after remand, years after the original application, when the notice sent could well be deemed insufficient, thus risking prolonged litigation with residents affected by the new location.

Affirmed.

1 The original site is located behind a small commercial building within a shopping center; the pole would be 121 feet away from the nearest residential property and 158 feet away from the nearest house. N.Y. SMSA Ltd. P'ship, supra, slip op. at 3-4.