T-MOBILE NORTHEAST, L.L.C. v. BOROUGH OF NORTHVALE PLANNING/ZONING BOARD OF ADJUSTMENT (Superior Court of New Jersey, April 29, 2011).
Applicant sought to construct a 110-foot monopole on a property zoned light industrial in order to address what Applicant said was a gap in wireless communication coverage in the area. Applicant sought variances for use, height, side and front yard setbacks, lot depth, width and area. After five public hearings, the zoning Board voted to deny the application. Thereafter, Applicant filed an action seeking reversal of the Board's decision. The trial court concluded that the Board's action was arbitrary, capricious and unreasonable. The trial court found that the record did not support the Board's findings.
On appeal, the New Jersey Appellate Court stated that a telecommunications facility serves the general welfare and thereby satisfies the positive criteria under New Jersey law if the use is particularly suited to the proposed site. In the case, the Court stated that Applicant presented sufficient evidence showing that the site is particularly suitable. Applicant testified as to the coverage gap in the Borough and stated that the proposed monopole would increase coverage. Moreover, testimony established that Applicant had undertaken a good faith search for alternative sites, that the site selected was suitable because it was in an industrial zone, and a monopole on other sites would be more visible to residential neighborhoods.
In regard to the Board's argument that the Borough's ordinance required a specific "fall zone" and that the monopole presented a significant safety concern due to its close proximity to other structures, the Appellate Court stated that the Board failed to present any evidence to support these contentions. Apparently, these safety concerns were not mentioned in the hearings, nor were they addressed in the Board resolution. The Board further contended that the monopole would have a significant adverse visual impact upon the residential areas. However, the Appellate Court agreed with the trial court that although the monopole would have some adverse aesthetic impact, it was not sufficient to warrant denial of the application.
The Board additionally contended that the construction of the monopole would contravene the Borough's master zoning plan, which does not allow intensification or alteration of any existing nonconforming use or structure. The Board maintained that, because the monopole "emits radio frequency" and "gives rise to substantial noise concerns[,]" it would intensify a nonconforming use on the property. In its resolution, the Board found that adding a second "higher intensity use" would constitute "overuse" of the site. The Board asserted that the monopole would result in "significant traffic, noise and aesthetic detriments in close proximity to a residential zone[.]"
The Appellate Court stated that although it was undisputed that the property contained a nonconforming use, there was no evidence to support the Board's findings. There was testimony that the monopole would comply with State noise requirements and the Borough's code, that the pole would not be lit, it would generate minimal noise, and it would not emit any odor, smoke, glare or dust. In addition, there was no evidence indicating that the monopole would have any impact on traffic or cause congestion in the area. Therefore, the Appellate Court held that the record did not support the Board's contention that the monopole would result in an "overuse" of the property.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com