T-MOBILE NORTHEAST, L.L.C v. ZONING BOARD OF ADJUSTMENT of the BOROUGH OF NEW MILFORD (Superior Court of New Jersey, Appellate Division, February 22, 2011).
The plaintiff filed an application 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 of Adjustment conducted several public hearings on the application and voted to deny the applications, stating 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.
The plaintiff challenged the Board's action by filing an action in New Jersey state court. The trial court concluded that the Board's action was arbitrary, capricious and unreasonable. The trial court found that plaintiff had established the criteria to obtain a use variance pursuant to New Jersey law. The trial court stated that denial of the variance was not warranted merely because plaintiff had not used the "most effective means of camouflage" for its facility. The trial court’s judgment 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.
The Appellate Court stated that pursuant to New Jersey law, a balancing of the positive and negative criteria must be made and only a substantial detriment to the public will support the denial of a variance. The Appellate Court stated that a telecommunications facility serves the general welfare and thereby satisfies the positive criteria provided the use is particularly suited to the proposed site. In this case, the Court stated that plaintiff presented sufficient evidence to show that the site proposed for its facility was particularly suitable. The Board apparently conceded this point but nevertheless found that plaintiff did not satisfy the negative criteria because it failed to employ the most effective means of camouflage for the proposed facility.
Although the trial court found that the proposed facility would have some adverse visual impact on the surrounding neighborhood, this was not sufficient to warrant denial of the variance because the Board had not engaged in the balancing of the positive and negative effects of the facility, as required by New Jersey law. The Appellate Court also held that the Board erroneously found that the 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. The trial court’s judgment reversing the Board's decision, granting the variances and site plan approval that plaintiff sought, and allowing the development to proceed was affirmed.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com