T-MOBILE NORTHEAST, LLC v. TOWNSHIP OF CHERRY HILL ZONING BOARD OF ADJUSTMENT (Superior Court of New Jersey, Appellate Division, March 24, 2011).
The applicant challenged the denial of its request for site plan approval and a setback variance. The facility was proposed to be in left rear corner of a multi-use property that was zoned B-3. A setback variance was required because the applicant sought to locate its project 65 feet from a right of way connecting Route 70 and Kings Highway, but the zoning ordinance required 195 feet from a highway right-of-way.
Applicant testified that the facility was screened by the commercial buildings on the property and on the adjacent property. The base of the tower would be very well screened because the proposed location was lower than the adjoining right of way and the existing vegetation would minimize any view of the base of the facility. A representative of the owner of the site acknowledged the proximity of the ramp from Route 70 to Kings Highway to the proposed tower, but emphasized that the proposed location obscured the facility from passersby. He also stated that there was no other location on the property for the tower that would not interfere with existing operations. The staff report indicated that the 195 foot setback was placed in the ordinance for aesthetic purposes because the Planning Board and Zoning Board had heard numerous engineers testify there is no real fall zone for a lattice tower or a monopole.
After an initial denial and an alternative design was proposed, the applicant presented another witness, a planner and landscape architect, who reiterated the opinion of the professional engineer that the only location on the property that conformed to the setback requirement was in the front parking lot of a storage facility, closer to Route 70 and more visible to the occupants and users of the development and the community because the tower facility would not be screened by the storage facility. In addressing what is called a "good planning" variance, the planner opined that the requested setback variance would enhance the visual environment because the ground level portion of the facility would be substantially screened from occupants and users of the storage facility, bank, and restaurant and from passersby.
Once again, the Board voted to deny the site plan application. In its resolution, the Board found the monopole and its compound could be seen from Kings Highway, and it would have more than a minor visual impact due to its location "right on Kings Highway." The monopole and its compound could be located in an area on the site that did not require a variance. The Board also found that the original developer of the site initially proposed but withdrew a cell tower from the development plan. The Board opined that a cell tower should have been discussed as part of the original development plan. Moreover, the tower could be placed on other locations within the property; therefore, applicant could not establish the hardship required for the setback variance.
The trial court reviewed and upheld the Board's resolution denying the application for site plan approval and the setback variance. The trial judge held that the record fully supported the Board decision to deny the variance. In doing so, the judge noted that the purpose of the setback requirement was to make sure that antennas or monopoles were placed as far back as possible from all roadways. This would be impaired if the monopole is placed 65 feet from one roadway when there may be an opportunity now and clearly was one back in 2004 to have locate the pole in a location that conformed to all the zoning requirements.
On appeal, the Appellate Court stated that under New Jersey law a decision of a municipal board is entitled to great deference and will not be disturbed unless it is arbitrary, capricious or unreasonable. For the setback variance, the applicant had to establish that the benefits resulting from the deviation from the Township's setback requirement substantially outweighed any detriments. Stated differently, the applicant was required to demonstrate that the setback relaxation actually made more sense in the proposed location than adherence to the required setback. It is for this reason that the requested variance was referred to as the "good planning" variance.
The Appellate Court stated that some of the Board's findings were internally inconsistent and did not accurately reflect the record. The Appellate Court stated that the Board's reliance on the existence of a conforming location on the property to deny the setback variance actually undermined its aesthetic concerns. Locating the tower in the front parking lot of the storage facility would render the tower and ground equipment visible to virtually all occupants and users of the property and many passersby. The Appellate Court stated that the Board did not seem to appreciate that a telecommunications facility was a permitted accessory use in the zone and the nature of the facility advanced the public good.
Although the Board applied a clear standard designed to advance aesthetic and safety concerns associated with telecommunication facilities, the Appellate Court stated that the record revealed that the safety concerns were illusory. The Appellate Court stated that the applicant presented a site plan that advanced the purposes of the zoning law; the applicant introduced substantial evidence that its proposed placement advanced rather than deterred the purposes sought to be obtained by the setback ordinance. On this record, the Appellate Court held that the Board's denial of the setback variance was arbitrary, capricious and unreasonable.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com