Opinion
DOCKET NO. A-5070-11T2
12-11-2013
NEW YORK SMSA LIMITED PARTNERSHIP, a New York Limited Partnership d/b/a Verizon Wireless and T-MOBILE NORTHEAST LLC, Plaintiffs-Respondents, v. BOROUGH OF MIDLAND PARK ZONING BOARD OF ADJUSTMENT, Defendant-Appellant.
Douglas F. Doyle argued the cause for appellant (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Doyle, of counsel and on the brief; Daniel E. Zwillenberg, on the brief). Richard L. Schneider and Gregory D. Meese argued the cause for respondents (Vogel, Chait, Collins & Schneider, 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 LLC; Mr. Schneider and Mr. Meese, of counsel and on the joint brief; David H. Soloway, on the joint brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7488-11.
Douglas F. Doyle argued the cause for appellant (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Doyle, of counsel and on the brief; Daniel E. Zwillenberg, on the brief).
Richard L. Schneider and Gregory D. Meese argued the cause for respondents (Vogel, Chait, Collins & Schneider, 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 LLC; Mr. Schneider and Mr. Meese, of counsel and on the joint brief; David H. Soloway, on the joint brief).
The opinion of the court was delivered by OSTRER, J.A.D.
This case involves an application to construct a cellular phone tower. The Borough of Midland Park Zoning Board of Adjustment (Board) denied the joint application of New York SMSA Limited Partnership doing business as Verizon Wireless (Verizon) and T-Mobile Northeast LLC (T-Mobile) for use and height variances under N.J.S.A. 40:55D-70(d)(1) and d(6). The Board also failed to reach the carriers' application for bulk variances under N.J.S.A. 40:55D-70(c)(2), and for site plan approval. The trial court reversed the Board's decision and ordered it to issue the requested variances subject to the imposition of reasonable conditions, and remanded for consideration of the site plan application. The Board appeals, and argues the trial court erred by failing to defer to its finding that the carriers did not satisfy the criteria for the variances. Having considered the Board's arguments in light of the record and applicable legal principles, we affirm the trial court's order.
We refer to Verizon and T-Mobile collectively as "the carriers."
I.
Verizon and T-Mobile hold Federal Communications Commission (FCC) licenses to provide wireless communication services to the borough and surrounding areas. They jointly applied for approval to construct a 110-foot shared monopole at 80 Godwin Avenue to remedy deficiencies in their service. They filed jointly upon the Board's suggestion, after it received separate applications from the carriers for ninety-foot poles, Verizon at the 80 Godwin site, and T-Mobile at a site at 44 Godwin Avenue.
The proposed monopole would be a flagless flagpole, with the antennas hidden within the pole. The carriers proposed an eighteen-foot by forty-foot fenced equipment compound to contain: the pole; Verizon's equipment shed, which would be 7.5 feet wide, 13.25 feet long, and eight feet high; Verizon's above-ground generator; and T-Mobile's three equipment cabinets, which would measure 2.5 feet wide by 4.5 feet high.
The site is located behind a small commercial building within a shopping center encompassing 3.548 acres. The commercial building is located in a small block and lot separate from the shopping center. That small parcel, and two similar lots to the west, create a notch into the shopping center property, which surrounds the three small parcels to the west, north, and east.
The center includes, as its anchor, a Sears hardware store, and several other retail and service businesses, including a bank to the east of the small commercial building, at the southeast corner of the shopping center, at the intersection of Godwin and Rea Avenues. The site is in the borough's B-3 zone, which is restricted to retail and office uses, but the shopping center adjoins the residential R-1 zone, which is restricted to single-family homes. The pole would be within 121 feet of the nearest residential property, and 158 feet from the nearest house.
The carriers need a use variance because the borough only permitted wireless communications towers on land the borough owned, leased or controlled. They need a height variance because the ordinance also requires that towers be separated from residential property by 200 feet or three times the tower's height, whichever is greater. Also, the maximum height of structures in the B-3 zone is thirty-six feet.
The carriers also requested multiple bulk variances pertaining to the following: (1) maximum impervious lot coverage, which was already out of compliance at over 85.4 percent compared to a seventy-five percent maximum, would rise an additional 0.2 percent; (2) maximum equipment shelter height of eight feet would exceed the six-foot-standard in the B-3 zone; (3) the equipment shelter setback of fourteen feet would violate the seventy-five foot standard for wireless installations; (4) the tower setback of 15.9 feet would violate the seventy-five percent of tower height standard for wireless installations; (5) the tower separation from a residence would exceed the minimum distance equal to three times the tower's height under the wireless ordinance; and (6) the proposed above-ground generator would violate the B-3 zone ordinance requiring generators to be built below-grade.
The Board's resolution indicated that the proposal required additional bulk variances to permit: (1) the generator, as an accessory structure, to be located within 3.5 feet from the principal building, as opposed to the required twelve feet; (2) less than required evergreen screening; (3) a reduction in parking spaces; (4) location of the equipment shelter in a "front yard"; (5) location of accessory buildings or structures within eleven and fourteen feet of the property line, as opposed to the required fifteen feet; and (6) the maximum floor area for the proposed equipment shelter to exceed the maximum of 100 square feet.
According to the Board's counsel's interpretation, the 100-square-foot requirement pertained to the total coverage of all installed equipment shelters, and not to each carrier.
The Board held nine hearings between May 2010 and February 2011. The carriers and the Board each called radio frequency (RF) experts who addressed issues pertaining to gaps in the carriers' service, the utility of the chosen site, and the suitability of alternative sites and technologies. The carriers' RF expert, Glenn Pierson, delineated a gap in the carriers' coverage and testified that the proposed tower would remedy it. The Board's RF expert, Ronald Graiff, ultimately agreed that the proposed site was justified and the proposed tower would enable the carriers to cure a significant gap in their service. In response to the Board's request, the carriers also alternatively proposed a 120-foot tower, designed to accommodate two more carriers, which would be intended to obviate the need for additional separate towers in the borough.
Pierson also responded to the Board's request that the carriers consider satisfying their service needs by implementing a Distributed Antenna System (DAS) instead of a monopole. Although antennas in a DAS would be placed at significantly lower heights on existing utility poles, if space were available, they would be more numerous. Pierson also asserted that the size of installations on the poles would be larger than those depicted in articles circulated to board members, because they would need to serve multiple frequencies and carriers. Pierson testified that a DAS was generally implemented for an interior environment such as a shopping mall, or very urban environments, to assure coverage within buildings. He opined that design, installation and operation of a DAS in Midland Park would be complex, uncertain, and would not reliably meet the carriers' needs.
Graiff ultimately agreed, stating that the borough was not "urban enough" for a DAS, and the carriers' needs were "best handled by macrocell." The Borough's planner, Steven Lydon, also was unable to support a DAS. Although he opined that he could not assess its aesthetic impact without a proposed design, he recognized that many pole installations would be located in residential areas, and the proposed single cell tower would achieve a higher degree of compliance with the zoning ordinance than would a DAS system. He concluded that the monopole was the preferred solution.
The carriers also considered alternative sites, but they were either unsuitable, or unavailable. In particular, the carriers evaluated the efficacy of locating the monopole on municipal property near the Borough Library, but concluded that it would largely overlap with existing service coverage and do little to fill gaps in service. Graiff agreed, stating that siting the pole there would "murder" their system.
A Board member expressed the view that the property of an A&P supermarket, which was located slightly farther from residences than the proposed site, would be a preferable site for the monopole. In response, the carriers' site acquisition consultant, Joseph A. Binetti, testified that he contacted A&P's real estate department in 2009, 2010, and again three weeks before the hearing, to ascertain the site's availability, and each time, A&P ignored or rebuffed the carriers' inquiries. Notwithstanding the absence of any other sworn testimony on the subject, the Board chairwoman stated before the Board's vote that she had heard, from sources she could not name, that the "owner of the A&P site is, in fact, entertaining a cell tower on that property."
The carriers also called a professional engineer, James Murawski, and a professional planner, William F. Masters, Jr. Murawski reviewed the site plan. He noted that siting the monopole behind the rear wall of a commercial building obscured the bottom of the pole from the public passing in front of the shopping center. Existing evergreen trees near the side would serve as a buffer. Also, aside from periodic maintenance of the equipment, the site would be unmanned and would not generate any traffic. The Verizon generator would be test-run remotely for thirty minutes a week, but would be surrounded by an outdoor enclosure to mitigate noise. The site would consume six preexisting parking spaces; however, the carriers proposed to create five new parking spaces along the northern boundary of the shopping center, in the rear of the Sears hardware store, by reducing the depth of a berm that separated the center from adjoining residential properties. The proposal would also increase from eighty-five percent, to 85.8 percent, the center's impervious coverage, which already exceeded the maximum of seventy-five percent. At the Board's request, the carriers confirmed that Verizon could locate its generator on the roof of a nearby building, thereby increasing the setback of the installation, and recovering one parking space.
Masters opined that there were no alternative sites available that would meet the carriers' service needs, nor was there alternative technology that would obviate the need to erect the proposed tower. He stated that the proposal satisfied the general welfare. He asserted: the site would "meet[] [the carriers'] technical requirements to fill the existing gap in coverage"; it was well situated to serve major traffic corridors; it was located in a non-residential zone; although it did not meet the separation distance requirement of the wireless ordinance, it "maintain[ed] a considerable separation distance from residential properties that would not be achievable with a smaller size piece of property"; it collocated two carriers' facilities; and the landlord was a willing participant.
He also observed that the carriers were amenable to erecting a 120-foot tower to accommodate as many as four carriers; by contrast, the wireless ordinance allowed tower heights of 150 feet for towers accommodating three or more carriers. He also observed that the monopole would be less visually distracting than a facility in which the antennas were located on the exterior of the structure.
Masters also addressed the four-part balancing test in Sica v. Board of Adjustment of Wall, 127 N.J. 152, 165-66 (1992), in which the Court held that a zoning board should: (1) "identify the public interest at stake"; (2) "identify the detrimental effect that will ensue" if it grants the variances; (3) consider "imposing reasonable conditions on the use" to reduce the detrimental effects; and (4) "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Masters asserted that the carriers were licensed to provide wireless telecommunication services that served the public welfare and addressed the public's need for emergency communications.
He concluded that the only detrimental impact from the proposed installation was visual. He presented photographic visualizations of the tower from various points in the borough, which demonstrated that, from various perspectives, the proposed tower would conspicuously rise above surrounding trees and structures. Masters asserted the carriers had done as much as possible to "reduce the overall visual impact of this particular facility through the design of the structure as well as the design of the equipment compound."
He stated that the carriers accepted reasonable conditions suggested by the Board or its experts, such as building in the capacity to host two other carriers. He opined that the variance relief would not, on balance, cause a substantial detriment to the public good.
Masters also addressed the requested bulk variances. He stated they were "subsumed in the D-1 use variance request," or otherwise met the standard for adoption of a c(2) variance. See N.J.S.A. 40:55D-70(c)(2). The proposed installation would locate an accessory building in a front yard, contrary to the zoning ordinance, although the site was actually in the rear of the small free-standing commercial building that fronts Godwin Avenue.
The setbacks would be eleven feet, fourteen feet, and fourteen feet from the property line, contrary to the fifteen-foot setback generally required by the zoning ordinance, and the seventy-five-foot setback required of wireless facilities if located in an authorized wireless site under the ordinance. Midland Park, N.J., Mun. Code § 34-13.1(b)(1), 34-20.6(b)(1) (2013), http://clerkshq.com/default.ashx?clientsite=Midlandpark-nj. On the other hand, the site would be much farther than fifteen feet from the edge of the shopping center, if it were deemed an integrated whole. Masters noted that the setback from the adjoining commercial property was inconsequential because the building had no rear windows. In fact, the Board's planner suggested that the equipment be placed even closer to the building, to allow for the planting of trees along the site's perimeter to serve as a buffer. Masters testified that locating Verizon's generator on a rooftop would avoid the need for a variance from the ordinance governing that accessory structure's setback from nearby buildings.
Masters conceded that Verizon's equipment shelter would violate the ordinance imposing a six-foot maximum for accessory buildings in front yards, but he noted that the shelter would actually be located behind the solid rear wall of the commercial building. He also recognized that Verizon's above-ground generator would violate the ordinance requirement that generators be located below-grade. However, Murawski had testified that Verizon had experienced water infiltration when it located generators below-grade in other locations.
The proposed tower exceeded the ordinance's standard setback of seventy-percent of the tower's height. It would be 121 feet from the nearest residential property and 158 feet from the nearest residence, violating the ordinance's minimum separation distance from residential property of three times the tower height. Masters asserted the variance from the setback and separation distance requirements was subsumed within the d(1) use variance.
Masters also asserted that the proposal did not require a variance from the ordinance provision limiting the maximum equipment gross floor area to 100 square feet. Although the two carriers would together utilize more than 100 square feet, they each separately did not. He interpreted the 100-square-foot requirement to govern each carrier separately.
The ordinance imposes different square footage requirements depending on where the equipment cabinet or structure is located:
Antennas Mounted on Utility Poles, Light Poles or Towers. The equipment cabinet or structure used in association with antennas shall be located in accordance with the following:
1. In a front or side yard provided the cabinet or structure is not greater than six (6) feet in height or one hundred (100) square feet of gross floor area and the cabinet/structure is located a minimum of seventy-five (75) feet from all lot lines. The cabinet/structure shall be screened by an evergreen hedge with an ultimate height of at least forty-two (42) to forty-eight (48) inches and a planted height of at least thirty-six (36) inches.
2. In a rear yard, provided the cabinet or structure is no greater than eight (8) feet in height or one hundred twenty (120) square feet in gross floor area. The cabinet/structure shall be screened by an evergreen hedge with an ultimate height of eight (8) feet and a planted height of at least forty-eight (48) inches.
3. In all other instances, structures or cabinets shall be screened from view of all residential properties which abut or are directly across the street from the structure or cabinet by a solid fence six (6) feet in height or an evergreen hedge with an ultimate height of eight (8) feet and a planted height of at least seventy-two (72) inches.
[Midland Park, N.J., Mun. Code, supra, at § 34-20.61(b).]
At the Board's suggestion, the carriers also explored, and were amenable to placing the facility in a different location at the shopping center. They considered utilizing a planted island in the parking lot, to the west of the originally proposed site. The alternative site would increase the setbacks and mitigate or obviate the need for some of the bulk variances. However, the alternative would have placed the pole, unobscured, in front and center of the Sears building. For that reason, the Board's planner opined that the alternative was a less attractive site from a planning perspective.
In response to the Board's request, the carriers also examined yet another alternative that would place the tower and associated equipment behind and to the north of the Sears building, in place of the originally proposed additional parking spaces. However, Murawski testified that this alternative would have resulted in the greatest deviation from required separation distances between the tower and residences. It would have placed the facility virtually on the border of a residential property.
Lydon did not opine whether the Board should grant the requested variances, but recommended modifications to lessen the proposed installation's impact. He also opposed creating five new parking spaces in the rear of the center — to replace those removed by the proposed installation — because shoppers would be unlikely to use them, and creation of the spaces would reduce the buffer between the center and nearby residences.
On February 23, 2011, the Board failed to approve the use and height variances by the required supermajority. Four of seven members supported the 110-foot tower, and only three favored the 120-foot tower. The Board declined to vote on the alternative sites in front of, and to the rear of, the Sears hardware store.
Although the record is not entirely clear, we are convinced the Board did not expressly address the bulk variances, but intended to address both the height and use variances. The Board's attorney initially advised the Board to consider the d(1) and d(6) variances "together with the bulk variances," before reaching the site plan. However, the carriers' counsel thereafter suggested, somewhat ambiguously, "The motion would be first on the, I think as [Board counsel] suggested, on the use variance first," without referring to the bulk variances. The Board chairwoman stated, "Correct," and Board counsel then repeated, "The use variance, and I'm going to leave it up to the Board to decide whether you want to make a motion on the 120 or the 110. It's going to be up to you."
The Board attorney stated, "I recommend that you bifurcate your vote. I recommend that you first consider whether the D-1 and the D-6 Variances should be granted together with the bulk variances, and then we'll take on the site plan aspect of it." He reiterated:
I would recommend that you consider voting first on the application as amended voluntarily by the applicant to 120 feet for both the "D" and Bulk Variances, and then depending on your vote to that we may take up the 110 foot D-1, D-6 and bulk variances, and then depending on your vote on that we'll take up the site application.
However, a board member then stated, "I say make a motion to go with the 120 height." Given the reference to the height, we interpret the motion to have covered the d(6) variance as well, notwithstanding the Board attorney's statement, "Okay. And as part of that motion for the use variance do you have a condition as to the location of where it should be?" The member then clarified that his motion pertained to the originally proposed location. He also amended his motion to provide that the tower's color would be determined later. After the motion gained only three votes out of seven, the Board chairwoman then moved to deny the 110-foot alternative, which garnered three votes in favor and four against, as one member who opposed the taller tower supported the 110-foot one.
After the vote, the Board's attorney stated, "[W]e do not need to get to the C-2 Bulk Variances which only require a simple majority, because you would first need the Use Variance[.]" The carriers' attorney did not object. However, the omission of any mention of the height variance supports the conclusion that the statutory denial was of a motion for both the use and height variances.
Although the Board apparently voted only on the use and height variances under d(1) and d(6), the Board's resolution, adopted July 13, 2011, denied the use, height and bulk variances. It resolved "that the Applicant's Application for D1 and D6 Variance and bulk variance relief to construct a monopole of 120 feet in height in the R-1 Zone at 80 Godwin Avenue, Block 6, Lot 1 and 170.01 is hereby denied for the reasons set forth above[.]" The resolution likewise, using similar language, rejected the 110-foot monopole.
The record does not include a transcript of the meeting at which the resolution was adopted.
The resolution also erroneously states that the proposed site was in the R-1 zone. It was undisputed that the location was in the B-3 zone.
The Board found that the site was not particularly suited to cellular tower use because the shopping center was already over-utilized and lacked parking, the site was too close to residences, the development required "numerous and substantial bulk variances," and the carriers "failed to establish the nonfeasibility of alternative technologies such as a . . . 'DAS.'" The Board also found that the development would result in a substantial detriment to the public good as a result of its visual impact, and its impact on noise and parking. The Board also found that the relief would "impair the intent and purposes of the zone plan and zoning ordinance" and would not advance the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. The plan would "permit[] a structure violating multiple zoning ordinances in excess of 100 feet in height to be located on an already improved site, and adjacent to residential properties." The Board concluded that the benefits of granting the variance "would not substantially outweigh any detriment to the public good."
The carriers then filed a complaint in lieu of prerogative writs challenging the denial and seeking an order declaring that Verizon and T-Mobile were entitled to approval of their application without remand.
After a trial on the record, and for the reasons set forth in a cogent written opinion, Judge Menelaos W. Toskos entered an order May 7, 2012, reversing the Board's denial of the carriers' application for use variances, granting the use and bulk variances, and remanding to the Board "solely for the purpose of considering the site plan application and the imposition of any reasonably necessary conditions" within forty-five days. Judge Toskos found that the carriers satisfied the positive and negative criteria required for the grant of the use variances. He also found that the bulk variances were subsumed within the use variance, were de minimis, or resulted from accommodations made in response to Board concerns.
The court's order did not expressly address the height variance under N.J.S.A. 40:55D-70(d)(6), but we construe the reference to the plural "use variances" to include the d(6) variance.
This appeal followed.
II.
The Board contends that the trial court did not appropriately defer to the Board's decision, it erred in finding that the carriers met the positive and negative criteria for the use variances, and the bulk variances were subsumed into the use variance. We disagree. Having carefully reviewed the Board's arguments in light of the applicable legal principles, we affirm.
A.
In reviewing the trial court's decision, we apply the same standard as the trial court in reviewing the Board's action. 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)); see also Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of West Windsor, 172 N.J. 75, 81-82 (2002). We recognize that a party challenging a variance denial bears a heavy burden. Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Variances should be sparingly granted, and courts must extend greater deference to a variance denial than to a grant. Rowatti v. Gonchar, 101 N.J. 46, 52 ( 1985); Nynex Mobile Commc'ns Co. v. Hazlet Zoning Bd. of Adjustment, 276 N.J. Super. 598, 609 (App. Div. 1994). Nonetheless, our ultimate task is to determine whether there was substantial evidence to support the Board's decision. Ten Stary Dom P'ship v. Mauro, 216 N.J. _, _ (2013) (slip op. at 22). "[Z]oning boards [must] root their findings in substantiated proofs rather than unsupported allegations." Cell S. of N.J., supra, 172 N.J. at 88.
B.
We consider first the appeal from the trial court's order granting the use variance. An applicant for a use variance under N.J.S.A. 40:55D-70(d) must show the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70(d). Consequently, the applicant must satisfy both the positive and negative criteria. Cell S. of N.J., supra, 172 N.J. at 82. To satisfy the "positive" criteria, an applicant must show that the "proposed use promotes the general welfare and is particularly suited for the site." New Brunswick Cellular Tel. Co., supra, 160 N.J. at 14.
Proof of an FCC license satisfies the general welfare requirement in an application to erect a telecommunications tower. Ibid. To demonstrate site suitability, "the applicant initially must show the need for the facility at that location." Ibid. Relevant to that showing is evidence that the applicant has made a "reasonable and good faith effort to find an alternative, less-intrusive site." Ocean Cnty. Cellular Tel. Co. v. Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 528 (App. Div.), certif. denied, 175 N.J. 75 (2002). We have observed:
[C]ases have previously found particular suitability when 1) the site is zoned for industrial use; 2) the site is centrally located in the carrier's search area; 3) the site already accommodates a monopole; 4) competent expert testimony establishes that existing capacity is inadequate; 5) propagation maps demonstrate an inadequacyHowever, an applicant need not "disprove the 'possible existence'" of alternative sites. Ocean Cnty. Cellular Tel. Co., supra, 352 N.J. Super. at 529. "Zoning boards do not have carte blanche to reject an application based on conjecture that a possible alternative site is both suitable and available." N.Y. SMSA Ltd. v. Mendham Zoning Bd. of Adjustment, 366 N.J. Super. 141, 163 (App. Div.), aff'd o.b., 181 N.J. 387, 388 (2004).
of signal strength; 6) the site redresses a carrier's lack of capacity; or 7) viable alternative sites are not available.
[N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004).]
To satisfy the negative criteria, an applicant must demonstrate "the use will not substantially impair the purpose and intent of the zoning ordinance, or constitute a substantial detriment to the public good." New Brunswick Cellular Tel. Co., supra, 160 N.J. at 15. Utilizing a weighing process that is also applied to inherently beneficial uses — although a telecommunication tower is not deemed inherently beneficial, Smart SMR, supra, 152 N.J. at 328-31 — the court must determine whether, on balance, the grant of the variance would cause a "'substantial detriment to the public good.'" Id. at 332 (quoting Sica, supra, 127 N.J. at 166).
To determine whether the negative criteria outweigh the positive criteria, our courts have applied the following test:
First the [zoning] board should identify the public interest at stake. Some uses are more compelling than others . . . . Second, the Board should identify the detrimental effect that will ensue from the grant of the variance . . . . Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. If so, the weight accorded [to] the adverse effect should be reduced by the anticipated effect of those restrictions. . . . Fourth, the Board should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.Our Supreme Court has held that "[a] telecommunications facility is a paradigm for a use that serves a greater community than the particular municipality" and serves the public interest in access to telecommunication services. Smart SMR, supra, 152 N.J. at 332-33. "Proof of an adverse effect on adjacent properties and on the municipal land use plan . . . generally will require qualified expert testimony." Id. at 336.
[Sica, supra, 127 N.J. at 165-66 (citations omitted).]
Applying these standards, we are satisfied that Judge Toskos correctly concluded that the carriers met both the positive and negative criteria, and the Board's finding to the contrary was unsupported by substantial evidence in the record. With respect to the positive criteria, the carriers were undisputedly FCC licensees, thereby satisfying the requirement to promote the general welfare.
The carriers also established the site's suitability. Both the carriers' and the Board's RF experts agreed that the site would address a significant gap in coverage. The record also demonstrated that the carriers engaged in a good faith effort to explore both alternative sites and technologies. Regarding alternative sites, both the carriers' and the Board's RF experts agreed that locating the tower on municipally-owned land near the public library would not satisfy the carriers' service needs and would, in Graiff's words, "murder" the system.
The carriers' site selection consultant testified that the carriers investigated utilizing several other sites, including a site near an A&P, but were repeatedly ignored or rebuffed. A Board member's contrary assertion that the A&P site was available was unsupported by cognizable evidence. While a board may rely on personal knowledge of its members if the information is placed on the record, Baghdikian v. Bd. of Adjustment of Ramsey, 247 N.J. Super. 45, 50-51 (App. Div. 1991), the assertion that the A&P site was available was based on uncorroborated hearsay from undisclosed sources that the carriers could not challenge. See High Horizons Dev. Co. v. Dep't of Transp., 120 N.J. 40, 53-54 (1990) ("[A]n agency is never free to act on undisclosed evidence that parties have had no opportunity to rebut.").
The carriers considered other potential sites, but none were available or more suitable. Moreover, any other suggested site — other than the technically unsuitable library site — would have also required a use variance, and there was no assurance that such a use variance would be granted. See Ocean Cnty. Cellular Tel. Co., supra, 352 N.J. Super. at 529 (discounting suggestion of alternative sites that would also require variance and "[t]he grant of such a variance is by no means predictable"). We agree with Judge Toskos's conclusion that the Board lacked support for its finding that the carriers failed to establish the unavailability of less intrusive sites. He stated, "The Board does not support this conclusion with any factual findings. . . . Nor does the Board identify which sites would provide comparable coverage. In fact, no explanation was given as to how the Board came to this conclusion."
The Board's conclusion that the carriers failed to consider alternative technologies was also unsupported by substantial evidence. The carriers' RF expert testified that a DAS would be problematic on several levels. The Board's RF expert ultimately agreed from a technical perspective, and the Board's planner ultimately agreed from a zoning perspective. "While a board may reject expert testimony, it may not do so unreasonably, based only upon bare allegations of unsubstantiated beliefs." N.Y. SMSA, L.P., supra, 370 N.J. Super. at 338.
We recognize that in determining the particular suitability of a site, its zoning and existing development are relevant. Ocean Cty. Cellular Tel. Co., supra, 352 N.J. Super. at 525; N.Y. SMSA, L.P., supra, 370 N.J. Super. at 338-39. However, the evidence does not support the Board's finding that the "noise and loss of parking spaces" would negatively impact the community, or that the proposal would "negatively impact parking circulation." There was no noise expert, nor was a variance from the noise ordinance needed or requested. The carriers proposed to create five parking spaces behind the Sears store, to replace five that would be removed near the site — the carriers having agreed to place the generator on the roof, reducing the need for a sixth space. The Board's planner recommended against creating those spaces. There was also testimony that there was no practical shortage of parking at the center, because the peak hours of the tenants varied.
The Board also found that the pole would negatively impact the "visual environment of the community," but that is inherent in any monopole, even one located on municipally owned land. The carriers proposed to hide the antennas within the pole. There was no expert evidence about the impact of the development on nearby property values, or on aesthetic impacts.
By contrast, Masters testified that the carriers had reduced the visual impact by hiding the antennas within the tower, which would be less visually distracting than antennas on platforms, as existed elsewhere in the borough. In Cell S. of N.J., supra, 172 N.J. at 87-88, the Court held that citizen complaints about the impact of a tower on surrounding areas were insufficient to prove — absent supporting expert testimony and in the face of contrary expert testimony — that the proposed tower "would not adversely affect the aesthetic values in the neighborhood."
In sum, the substantial evidence in the record supported a finding that a significant public interest was at stake; any detrimental effects were minor; and reasonable conditions that the Board or its experts suggested ameliorated some of those effects. See Sica, supra, 127 N.J. at 165-66. Weighing the positive and negative criteria, we conclude, as did the trial court, that the substantial evidence in the record did not support the Board's conclusion that "on balance, the grant of the variance would cause a substantial detriment to the public good." Sica, supra, 127 N.J. at 166.
The trial court correctly determined that the appropriate relief at that point was not a remand, but an order directing approval of the d(1) and d(6) variances. See Sprint Spectrum, L.P. v. Upper Saddle River Zoning Bd. of Adjustment, 352 N.J. Super. 575, 616 (App. Div.), certif. denied, 174 N.J. 543 (2002). However, consistent with our application of the third Sica factor, the grant of the variance shall be subject to the reasonable conditions previously suggested and accepted by the carriers. Thus, the variance shall be for a 120-foot pole, capable of hosting up to two other carriers, unless the Board votes to relieve the carriers of that condition and permit them to erect a 110-foot pole solely for the applicants.
These include: not creating five replacement parking spaces to the rear of the Sears; locating the Verizon generator on a nearby roof and sound testing it to assure compliance with noise limits; and moving the equipment closer to the building to the south to create room for additional screening. The color of the pole would also be determined by the Board.
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C.
We turn to the Board's appeal from the court's order compelling it to grant the bulk variances, subject to the imposition of reasonable conditions. The MLUL authorizes a board to grant a variance "where in an application . . . relating to a specific piece of property the purposes of this act . . . would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . ." N.J.S.A. 40:55D-70(c)(2). The applicant for a c(2) variance must also demonstrate that the relief "can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70.
[T]he statutory mandate that the grant of the variance occur "without substantial detriment to the public good" focuses on the impact the variance will have on the specific adjacent properties affected by the permitted deviations from the ordinance. The requirement that the grant of the variance not "substantially impair the intent and the purpose of the zone plan and zoning ordinance" focuses on whether the grant of the variance can be reconciled with the zoning restriction from which the applicant intends to deviate. Unlike use variances, reconciliation of a dimensional variance with the zone plan and zoning ordinance is a relatively uncomplicated issue, and depends on whether the grounds offered to support the variance, either under subsection c(1) or c(2), adequately justify the board's action in granting an exception from the ordinance's requirements.
[Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 57-58 (1999) (citation omitted).]
As did the trial court, we conclude the Board did not decide the carriers' application for c(2) bulk variances, notwithstanding the statement in the resolution to the contrary. See Park Ctr. at Route 35, Inc. v. Zoning Bd. of Adjustment of Woodbridge, 365 N.J. Super. 284, 289 (App. Div. 2004) (stating that memorializing resolution is not the decision itself, but is evidential of the board's decision); N.J.S.A. 40:55D-10(g) (stating that a "vote on any such resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be an action of the municipal agency"). We also agree that many of the bulk variances were subsumed within the use variance. To the extent one may conclude they were not, the evidence in the record compels the grant of the variances.
Our Supreme Court has recognized the tension created when an applicant seeks a variance from bulk regulations applicable to the use permitted by the zoning ordinance, as opposed to the use permitted by variance. In De Simone v. Greater Englewood Hous. Corp. No. 1, 56 N.J. 428, 443 (1970), the applicant obtained a use variance to build a multi-family project in a single-family zone, and sought various bulk variances. The Court stated, "The relief granted by the (c) variance was from requirements which fitted single-family dwellings but made no sense for a multi-family . . . project on a large, hilly, rocky site. If required at all, it was in fact essential by reason of the use variance previously allowed." Id. at 443-44.
We addressed the issue in Puleio v. N. Brunswick Bd. of Adjustment, 375 N.J. Super. 613, 621 (App. Div.), certif. denied, 184 N.J. 212 (2005), stating:
Generally application for a "c" variance and a "d" variance cannot coexist. If the application is for a use not permitted in the zone, the bulk regulations designed for that zone cannot be applicable to the intended use. For example, an application for a gasoline service station in a residential zone should not be held to the bulk requirements of the residential zone. Lot area requirements and front and side yard setbacks for a residence were not contemplated to be made applicable to a service station. A Zoning Board, in considering a "use" variance, must then consider the overall site design.We concluded that approval of a use variance compels approval of a variance from bulk regulations unrelated to the proposed use. "In essence, the 'c' variances are subsumed in the 'd' variance." Ibid.
Although we have declined to hold "that in every use variance application the bulk requirements of the ordinance are subsumed in the grant of a use variance," we have found a bulk variance to be subsumed when the deviations from the bulk regulations "were necessarily included in the grant" of the use variance. O'Donnell v. Koch, 197 N.J. Super. 134, 145 (App. Div. 1984) (finding use variance for funeral home parking lot in residential zone subsumed bulk variances regarding curb cuts, privacy fencing, and separation distances between curb cuts and residence). In O'Donnell, the Board did not make findings on the bulk variances, applying the statutory criteria. However, we declined to remand, finding that the record amply supported approval of the bulk variances. Id. at 146.
Applying these principles, we view the c(2) variances to be subsumed in the use variance, de minimis, or amply supported by the evidence. Some of the c(2) variances were required only because the south side of the proposed development was considered a "front yard," notwithstanding that it abutted the solid wall of the commercial building to the south, which screened it from Godwin Avenue further to the south. Even the Board's planner proposed that the equipment and accessory buildings be placed closer to the north wall of the commercial building, to make room for a row of evergreens along the north end of the carriers' property.
Likewise, application of the six-foot height limit for accessory structures in front yards was patently inappropriate in the case of Verizon's proposed eight-foot-high equipment shelter. The carriers' proposed equipment compound was a relatively miniscule parcel, the size of five parking spaces, amidst a sea of over 175 parking spaces to the north, west and east. The east edge of the compound was over eighty-two feet from the shopping center's eastern property line at Rea Avenue, and almost 120 feet from the center's closest property line to the north.
A variance from the 100-square-foot limitation on equipment shelters — assuming it applied to the total coverage as opposed to each carrier — was necessarily implicated by the co-location of the two carriers on a single tower, which the Board requested. However, based on the ordinance's plain language, we construe the 100-square-foot requirement to pertain to each equipment cabinet or structure.
We recognize that the proposed monopole would be closer to the nearest lot line and residential lot line than permitted by the wireless ordinance. However, there was no geographically-defined wireless communications zone in Midland Park. Rather, the ordinance permitted the use based on ownership, lease or control of the property. There was no evidence that there existed an alternate site that conformed to the ordinance. There was no municipally-owned or controlled land that would enable the carriers to remedy their gap in coverage, let alone municipally-owned or controlled land that would also accommodate the separation distances required. In short, deviation from those separation distances was implicated by, or subsumed by, the grant of the use variance.
Verizon presented substantial evidence to justify a variance from the requirement that generators be located below-grade. It established that when it had done so in the past, the generator failed. The public interest in maintaining cellular phone service during a power outage is not reasonably debatable in light of recent history. To the extent control of noise is the purpose of the below-grade requirement, Verizon demonstrated that its generator would comply with noise regulations, would be cycled on for only thirty minutes a week, and would be shielded. The balance of the positive and negative criteria compelled approval of this bulk variance.
The net impact of the carriers' proposal on impervious coverage in the shopping center was miniscule, as noted above. The net loss of five parking spaces was also minimal — and would result from compliance with the Board planner's suggestion that the creation of five new spaces would disserve the interests of neighboring residents to the north.
To the extent the bulk variances were not subsumed by the use variance, they are justified by a balancing of the positive and negative criteria applicable to c(2) variances. The positive criteria are satisfied by the location of a cellular tower that meets the public need for reliable cellular service. It is a purpose of the zoning plan, and the MLUL, to accommodate cellular facilities. These benefits outweigh any detrimental effect from the setback, coverage, and other regulations. See Lang, supra, 160 N.J. at 57.
In sum, the trial court appropriately ordered the Board to grant the use, height and bulk variances subject to imposition of reasonable conditions, and to consider promptly the site plan application.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION