NEW YORK SMSA LIMITED PARTNERSHIP v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EAST BRUNSWICK

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0238-16T1

NEW YORK SMSA LIMITED
PARTNERSHIP d/b/a VERIZON
WIRELESS,

        Plaintiff-Appellant,

v.

ZONING BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF EAST BRUNSWICK,

     Defendant-Respondent.
_______________________________


              Argued December 6, 2017 - Decided March 26, 2018

              Before Judges Fuentes, Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No.
              L-4826-15.

              Gregory D. Meese argued the cause for
              appellant   (Price,    Meese,   Shulman    and
              D'Arminio, PC, attorneys; Gregory D. Meese and
              Kevin G. Boris, on the brief).

              Alexander G. Fisher argued the cause for
              respondent    (Savo,    Schalk,    Gillespie,
              O'Grodnick   and   Fisher,   PA,   attorneys;
              Alexander G. Fisher, on the brief).


PER CURIAM
     New York SMSA Limited Partnership d/b/a Verizon Wireless

(Verizon) appeals from the August 18, 2016 dismissal of its

complaint in lieu of prerogative writs.          Verizon applied to the

East Brunswick Zoning Board (Board) for a variance to construct a

120-foot cellular telecommunications tower to address a signal

strength gap affecting about one hundred customers' homes.1           After

a review of alternative sites, Verizon identified a nonconforming

plumbing   business   in   a    residential   neighborhood   on   which    to

construct its tower. After six days of testimony, the Board denied

Verizon's application.         We affirm substantially for the reasons

given in Judge James P. Hurley's well-reasoned written opinion of

August 18, 2016.

     The identified gap was based on weakened signal strength as

Verizon increasingly transitions from 3G to 4G.          The Board found

that its stated goal of signal strength was based only on Verizon's

inadequate explanation of its projected goal.          Although Verizon

presented some evidence of a service gap, its advertised service

map showed that it advertises complete 4G coverage in the alleged

gap area. An applicant's marketing claims are "akin to a statement

against interest."    Nextel of N.Y., Inc. v. Borough of Englewood

Cliffs Bd. of Adjustment, 
361 N.J. Super. 22, 37 (App. Div. 2003).


1
   The coverage gap affects 1968 residents in 694 homes. Verizon
had a 32% share of the market which is 222 homes, and the tower
will only fill 50% of that gap.
                                      2                            A-0238-16T1
       Second, the Board found that Verizon did not fully explore

the possibility of constructing on a municipal building outside

of a residential area.             In addition, the Board determined that

Verizon      did     not     sufficiently      explain     why     an   alternative

technology, a distributive antenna system, would not be suited for

East Brunswick.

       The Board also found that Verizon did not fairly present the

detrimental        effect    the   tower    would   have    on   the    residential

neighborhood, both esthetically and in terms of future use of the

property.      Verizon conceded that subdividing the property into

several residential building lots would in fact be the highest and

best use of the property, and that building the proposed tower

would likely preclude the proposed site, a non-conforming plumbing

business, from being used as conforming residential property in

the foreseeable future.

       On appeal, Verizon argues principally that the Board's denial

was arbitrary, capricious and unreasonable, and also, in violation

of     the         federal      Telecommunications          Act,        47      U.S.C.

§    332(c)(7)(B)(iii),        was   not    based   on   substantial         evidence.

"[W]hen reviewing the decision of a trial court that has reviewed

municipal action, we are 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).                     Thus, our task


                                           3                                  A-0238-16T1
on appeal is limited.      See New York SMSA Ltd. Pshp. v. Board of

Adjustment, 
324 N.J. Super. 149, 165 (App. Div. 1999) (holding

that a board's findings must only be supported by substantial

evidence in the record).

     It is a well-settled principle of land use law that generally

"a decision of a zoning board may be set aside only when it is

'arbitrary, capricious or unreasonable.'"              Cell S. of N.J. 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)).               "[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."           New York SMSA, L.P. v. Bd. of

Adj. of Weehawken, 
370 N.J. Super. 319, 331 (App. Div. 2004).

"[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)   (quoting   Nynex     Mobile


                                       4                              A-0238-16T1
Communications Co. v. Hazlet Township Zoning Bd. of Adj., 
276 N.J.

Super. 598, 609 (App. Div. 1994)).

     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. Board of Adjustment, 
127 N.J. 152, 164 (1992).

Our Supreme Court has declined to treat wireless telecommunication

facilities as inherently beneficial uses.               Cell S. of N.J., 
172 N.J. at 90-91.      Wireless carriers seeking to construct cellular

telecommunications towers must therefore satisfy the positive

criteria to obtain a use variance under the Municipal Land Use

Law, 
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 Id. at 90.

     Possession of an FCC license establishes that the proposed

use promotes the general welfare, but a provider like Verizon must

still "show that the site is particularly suited for the use."

Nextel of N.Y., Inc., 
361 N.J. Super. at 37.                     It must not be

inconsistent     with    the    town's   master   plan.         
N.J.S.A.   40:55D-

70(d)(1).

     After a thorough review of the testimony presented, Judge

Hurley   found    that    the    Board's     decision     was    not   arbitrary,




                                         5                                 A-0238-16T1
capricious   or   unreasonable   and   was   supported   by   substantial

evidence in the record.    We agree and affirm.

Affirmed.




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