Opinion
DOCKET NO. A-4188-12T1
08-21-2014
T-MOBILE NORTHEAST, LLC, Plaintiff-Respondent, v. TOWNSHIP OF WEST DEPTFORD ZONING BOARD OF ADJUSTMENT, Defendant-Appellant. CONCERNED CITIZENS OF SHERWOOD ESTATES AND PENNFIELD, D.M. SILEO, Plaintiffs, v. WEST DEPTFORD ZONING BOARD and T-MOBILE NORTHEAST, LLC, Defendants.
John A. Alice argued the cause for appellant. Gregory J. Czura argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Waugh, and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-1257-11 and L-1295-10. John A. Alice argued the cause for appellant. Gregory J. Czura argued the cause for respondent. PER CURIAM
Defendant Township of West Deptford Zoning Board of Adjustment (Board) appeals the Law Division's June 6, 2012 order reversing its denial of a use variance to plaintiff T-Mobile Northeast, LLC (T-Mobile), as well as the April 5, 2013 order enforcing a settlement agreement between the Board and T-Mobile. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
T-Mobile is a wireless telecommunications provider. It identified a gap in its wireless coverage along Kings Highway in West Deptford. T-Mobile determined that the only way to remedy the problem was to build a free-standing monopole in that area of West Deptford.
T-Mobile identified a two-acre parcel of land located on Kings Highway, which was zoned as PO Professional Office District (PO Zone). It leased the property from the owner. Because the PO Zone did not permit telecommunications monopoles, T-Mobile applied for a use variance to construct a 134-foot monopole in May 2009.
The Board scheduled a public hearing for the application in September 2009. However, on the date of the meeting, the Board's attorney informed T-Mobile's attorney that the Board would not approve the pending application. He suggested that the parties meet to discuss mutually-acceptable alternate sites. Representatives of T-Mobile and the Board subsequently discussed potential alternate sites, and T-Mobile settled on the "Marple Farm" location.
Marple Farm is a wooded twenty-acre plot of land located at 399 Jessup Road. It is zoned as "R-6 Residential," which also does not permit a monopole. Nonetheless, the parties agreed that the Marple Farm location was suitable for the construction of the monopole. T-Mobile later entered into a lease with the owner of Marple Farm.
In April 2010, T-Mobile applied to the Board for a use variance to erect a 150-foot monopole at the new location. The new monopole was to have a six-foot lightning rod on top and support up to nine antennae. T-Mobile also proposed placing several wireless equipment cabinets on the concrete base surrounding the monopole. The entire structure would be enclosed by a fence. No on-site employees or parking spaces were required.
The Board held a public hearing on the application in June. The Board heard testimony from four experts in favor of the variance. David Sileo, a West Deptford resident who lived on a property approximately three-hundred feet away from the proposed monopole, testified in opposition, arguing that it would be an eyesore. After hearing the testimony, the Board voted unanimously to approve the variance, contingent on site plan approval. On July 8, the Board adopted Resolution 2010-9, which memorialized the grant of the use variance.
On July 29, Sileo, acting pro se, filed an action in lieu of prerogative writs challenging the Board's action. The judge subsequently entered an order to show cause with a return date of October 8. On the return date, the judge granted the Township of West Depford's (Township) motion to intervene, which it did as a party defendant.
The plaintiff was listed as "David M. Sileo for the Concerned Citizens of Sherwood Estates and Pennfield Concerned Citizens" (Concerned Citizens).
The Township's answer included a cross-claim against T-Mobile for (1) failure to request a height variance; (2) failure to address whether the variance approval would substantially impair the intent or purpose of the R-6 zone; and (3) failure to provide a negative-criteria analysis under N.J.S.A. 40:55D- 70(d). The Township also filed a cross-claim against the Board for its failure to address the three deficiencies alleged in the T-Mobile cross-claim.
In November, an amended complaint was filed by an attorney representing Sileo and Concerned Citizens. The complaint was amended once again in December to add allegations similar to those contained in the Township's cross-claims.
Following briefing and a hearing on the basis of the record developed before the Board in March 2011, the judge issued a written opinion on April 6. He addressed two issues: (1) whether the Board had jurisdiction to grant a height variance because T-Mobile had not explicitly sought one in its application; and (2) whether, during the public hearing on the variance, T-Mobile produced sufficient evidence concerning the monopole's impact on the intent and purpose of the master plan and the zoning ordinance to allow the Board to balance the positive and negative criteria of N.J.S.A. 40:55D-70(d) properly, as required by Sica v. Bd. of Adjustment, 127 N.J. 152, 164 (1992).
The judge held that, despite T-Mobile's failure to explicitly request a height variance, the Board had jurisdiction to grant one. The judge concluded that the omission was de minimis in light of three facts: (1) the public notice explicitly stated that T-Mobile was seeking a height variance; (2) objections were heard on the issue during the public hearing; and (3) the Board's resolution stated that it granted "all necessary and requested variances."
As to the second issue, the judge held that T-Mobile had satisfied the "positive criteria" prong of N.J.S.A. 40:55D-70(d), which no party disputed. However, the judge found that the negative criteria prong had not been sufficiently explored. Two elements are necessary to satisfy the negative criteria prong: (1) no substantial detriment to the public good and (2) no substantial impairment to "the intent and purpose of the master plan and zoning ordinance." Ibid. The judge determined that the second element was not addressed during the testimony at the Board meeting. By way of example, the judge noted the lack of testimony as to the sustainability of the residential character of the surrounding communities, how the monopole would impact the value of existing residential homes, and its effect on the future prospects of developing the Marple Farm site for residential purposes.
As a result, the judge invalidated the grant of the use variance and remanded the matter to the Board. The judge directed that T-Mobile serve notice of the remand hearing and instructed the Board to conduct a hearing "expressly limited to the issue of the proposed cellular tower and related components' impact upon the intent and purpose of the master plan and zoning ordinance of the Township of West Deptford." The memorializing order was filed the same day. A substantially similar amended order was filed on April 20, which explicitly retained jurisdiction.
The remand hearing took place on June 14. Jay Kruse, an engineer, testified as an expert on behalf of T-Mobile. Kruse explained the technicalities of the proposed monopole, and concluded that its construction would not prevent the remainder of the site from being developed residentially, consistent with the zone plan.
Mark Tinder, who was qualified as a real estate appraisal expert, also testified on behalf of T-Mobile. He opined that there would be minimal or no impact on the zone because the monopole was a passive use, the topography and vegetation would not be upset or removed, the predominant character of the zone would remain residential, and based on his studies and experience, there would be no negative impact on home values in the area.
James Miller, a qualified licensed professional planner, testified on behalf of T-Mobile as well. He opined, based on his research, review of the record, and application of the Sica factors, that there would be no substantial impairment on the intent or purpose of the zone plan.
Ten members of the community, all residents in the vicinity of the proposed monopole, testified against the variance. They asserted that the monopole would have a negative impact on the zone.
Joseph Petrongolo, the professional planner for the Board and the Township, spoke on their behalf, but was not put under oath or qualified as an expert. Petrongolo concluded that the visual impact on the zone would be significant and detrimental. He opined that the intent and purpose of the zone and master plan would suffer substantial detriment.
Following the testimony, the Board voted unanimously to deny the variance, with one abstention. The Board adopted a memorializing resolution on July 12. The resolution, which contained no analysis or findings of fact, stated that the proposed cellular tower would not be consistent with the Township's land use ordinance and would have a detrimental impact on the zone and zone plan.
On July 19, T-Mobile filed an action in lieu of prerogative writs challenging the Board's denial of the variance. The complaint alleged that the Board's determination concerning impairment of the master plan and zoning ordinance was conclusory and unsupported by facts. It also alleged that the Board failed to apply the Sica balancing test in reaching its conclusion and improperly ignored T-Mobile's evidence in support of the variance.
On motion by the Township, the Sileo/Concerned Citizens and T-Mobile complaints were consolidated. The consolidated hearing took place before a different judge in February 2012. At its conclusion, the judge reserved decision.
The judge issued a written opinion on May 18. She found that Petrongolo's testimony regarding the detrimental impact on the zone to be deficient because he failed to address each step of the Sica analysis. In addition, he did not provide the facts, data, and studies to support his conclusion, rendering it a net opinion. The judge also determined that it was improper for Petrongolo to give expert testimony without having first been sworn. Finally, the judge found that the Board's resolution denying the variance failed to meet the requirements of the Municipal Land Use Law, N.J.S.A. 40:55D-10(g), and was deficient as a matter of law because it did not (1) set forth factual findings or explain how the Board reached its conclusion; (2) explain why the Board found its expert more persuasive than T-Mobile's experts; (3) address the Sica balancing test or explain why the proposed monopole would have a detrimental impact to the zone plan and zoning ordinance; and (4) was impermissibly conclusory.
The judge invalidated the Board's denial of the variance and directed the Board to grant site plan approval within thirty days. The judge retained jurisdiction of the T-Mobile complaint and dismissed the Sileo/Concerned Citizens complaint with prejudice. The judge entered a memorializing order on June 6.
Sileo and Concerned Citizens did not appeal the dismissal of their complaint and have not participated in this appeal.
Pursuant to the judge's opinion, the Board conducted a meeting on June 12 to address site plan approval. Despite the clear mandate of the order, the Board voted to deny preliminary site plan approval. Shortly thereafter, the Board and the Township filed notices of appeal, which were subsequently dismissed as interlocutory.
In the interim, counsel for T-Mobile and the Board entered into a settlement agreement, which was executed on December 6, 2012. The agreement provided that the Board would be able to pursue an appeal of the use variance, but that it would grant site plan approval with specified changes.
The hearing contemplated in the settlement agreement took place on January 8, 2013. The Board again voted to deny site plan approval. T-Mobile filed a motion to enforce litigant's rights based on the Board's refusal to comply with the settlement agreement. The judge granted that motion in an order dated April 5. The order specified that it constituted the requisite zoning approval to enable T-Mobile to apply for a construction permit and precluded further remands to the Board. This appeal followed.
The Township, however, did not appeal.
II.
On appeal, the Board argues that the second trial judge erred in overturning its denial of the use variance.
The Board's attorney advised us at oral argument that it does not challenge the award of site plan approval.
A.
Our standard of review of an order granting or denying a variance is the same as that applied by the Law Division. Bressman v. Gash, 131 N.J. 517, 529 (1993). We defer to a municipal board's factual findings as long as they have an adequate basis in the record. Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 58 (1999); Fallone Props., LLC v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). We are not ordinarily bound by an agency's determination on a question of law, In re Distribution of Liquid Assets, 168 N.J. 1, 11 (2001), and a municipal board's construction of its own ordinances is reviewed de novo. Nevertheless, we "recognize the board's knowledge of local circumstances and accord deference to its interpretation." Fallone, supra, 369 N.J. Super. at 562; accord DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 174 (App. Div.), certif. denied, 181 N.J. 544 (2004). Like the trial judge, we may not "substitute [our] own judgment for that of the municipal board invested with the power . . . to pass upon the application." Kenwood Assocs. v. Bd. of Adjustment, 141 N.J. Super. 1, 4 (App. Div. 1976).
It is well settled that, in order to obtain a variance pursuant to N.J.S.A. 40:55D-70(d), an applicant must demonstrate both positive and negative criteria. Sica, supra, 127 N.J. at 156. The positive criteria require the party to prove the "special reasons" for granting the variance. Ibid. Analysis of the "negative criteria" involves two independent questions: whether the variance "can be granted without substantial detriment to the public good," and whether "the variance will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Price v. Himeji, 214 N.J. 263, 286 (2013) (quoting N.J.S.A. 40:55D-70) (internal quotation marks omitted). The first question "focuses on the effect that granting the variance would have on the surrounding properties." Ibid. The second question asks whether it is possible to "reconcile the grant of the variance for the specific project at the designated site with the municipality's contrary determination about the permitted uses as expressed through its zoning ordinance." Ibid. To satisfy this second part of the negative criteria, an applicant must normally offer "an enhanced quality of proof" that the variance "is not inconsistent with the intent and purpose of the master plan and zoning ordinance." Medici v. BPR Co., 107 N.J. 1, 21 (1987).
If, however, the proposed use is "inherently beneficial," the positive criteria are presumptively met. See Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998). If the "proposed use is inherently beneficial, an applicant's burden of proof is significantly lessened." Ibid. When the use is inherently beneficial, "satisfaction of the negative criteria does not depend on an enhanced quality of proof." Ibid. "Instead, grant of the variance depends on balancing the positive and negative criteria." Id. at 324. The required balancing test is found in Sica, supra, 127 N.J. at 165-66. It involves four factors: (1) identification of the public interest at stake, i.e., how "compelling" the use is; (2) identification of the "detrimental effect that will ensue from the grant of variance"; (3) whether the board can reduce any "detrimental effect by imposing reasonable conditions on the use"; and (4) a weighing of the positive and negative criteria to "determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Ibid.
Although the Supreme Court has declined to recognize all telecommunications facilities as inherently beneficial uses, Smart, supra, 152 N.J. at 331, it has nevertheless held that an Federal Communications Commission (FCC) license generally establishes that the use promotes the general welfare, id. at 336, and that the less-stringent Sica balancing test should be utilized in considering a use variance for a telecommunication purpose such as the monopole involved in this case, id. at 331-32. We have held that the positive criteria are satisfied where a cellphone carrier is licensed by the FCC and provides credible testimony establishing that a coverage gap exists. See N.Y. SMSA v. Bd. of Adjustment, 370 N.J. Super. 319, 340 (App. Div. 2004).
B.
N.J.S.A. 40:55D-10(g) requires a board to make "findings of fact and conclusions based thereon in each decision on any application for development." In N.Y. SMSA, L.P., supra, 370 N.J. Super. at 333, we required that such a resolution "contain sufficient findings, based on the proofs submitted, to satisfy a reviewing court that the board has analyzed the applicant's variance request in accordance with the statute and in light of the municipality's master plan and zoning ordinances."
Following the remand hearing, the Board adopted a resolution determining as follows:
WHEREAS, the West Deptford Township Zoning Board of Adjustment, having carefully considered the testimony as submitted by T-Mobile and conducted a public hearing in accordance with the requirements of Municipal Land Use Law[;] . . . and
WHEREAS, the West Deptford Township Zoning Board of Adjustment finds that the proposed cellular tower with associated equipment would not be consistent with the Land Use Ordinance of the Township of West Deptford and would have a detrimental impact to the zone and zone plan; and
WHEREAS, since the Board found a detrimental impact to the zone and zone plan, the site plan application was not heard; and
. . . .
WHEREAS, the West Deptford Township Zoning Board of Adjustment herein finds that the T-Mobile proposed cellular tower and related equipment would have a detrimental impact on the zone and zone plan, by a 6 yes to 0 no vote.
NOW, THEREFORE BE IT RESOLVED by the West Deptford Township Zoning Board of Adjustment, that it does hereby find the construction by T-Mobile of a one hundred and fifty (150') feet tall cellular monopole with the top of the antennae array at approximately one hundred and fifty three (153') feet and a lightning rod at one
hundred and fifty six (156') feet, would be a detriment to the zone and zone plan.
The trial judge correctly characterized the resolution as both devoid of factual findings and purely conclusory. The resolution in this case suffers from the same deficiencies as the one at issue in N.Y. SMSA, which "set[] forth no factual findings. [But] merely identifie[d] the applicant, describe[d] the proposed site, summarize[d], in a very cursory fashion, the testimony presented by [the applicant's] witnesses, and reiterate[d] selected comments by the Board members and the public," and whose "sole conclusory statement [was] couched in statutory language and lack[ed] any reference to specific facts and circumstances surrounding the application." Ibid.
In addition, the Board failed to articulate - either during the remand hearing or within the resolution - the required Sica analysis, which involves the weighing of positive and negative criteria. Smart, supra, 152 N.J. at 331-32. It was not enough to find that there were negative criteria. The Board was required to balance them against the positive criteria already determined to exist by the first trial judge.
The Board belatedly seeks to cure those deficiencies through the arguments contained in its briefs, which purport to articulate the Board's own glaringly unarticulated findings as to credibility, facts, and analysis. Those findings, however, must be made in the Board's resolution. As we held in N.Y. SMSA, supra, 370 N.J. Super. at 334:
The necessity of a resolution that clearly states the reasons for a board's decision on a variance request is especially compelling in the context of a wireless communications site application. In cases in which the Supreme Court has reviewed decisions on such applications, it has closely examined and considered the factual findings and reasons set forth in the boards' memorializing resolutions. See, e.g., Cell South of N.J., Inc. v. Zoning Bd. of Adjustment, West Windsor, 172 N.J. 75, 82-91 (2002); Smart, [supra,] 152 N.J. at 327-331.
Although a remand might ordinarily be appropriate, we see no reason why this variance application should go back to the Board for yet another hearing. The testimony presented by T-Mobile's experts, who testified under oath, supports its position that, on balance, the positive and negative criteria warrant approval of its application.
After Kruse testified to the technical specifications of the proposed monopole, the following relevant exchange took place:
[T-MOBILE'S COUNSEL]: One of the questions that has been raised is with regard to the ability to develop, to further develop this particular site for residential purposes. Do you have a plan that shows the ability to do so?Kruse then presented and explained three exhibits, each of which depicted a simulation of a view of the monopole from locations in the vicinity of the proposed site.
[KRUSE]: Yes, I do.
[T-MOBILE'S COUNSEL]: Just for the record, [Kruse] has actually probably significantly more detail with regard to the site and the application. We are going to get to a few more issues that focus on the use aspects of it. . . .
[KRUSE]: What I'll reference here is Exhibit A-3, is what we call a conceptual subdivision plan. And what we took the liberty of performing here was to determine if we could further subdivide the property into residential lots with the monopole located on the site itself and still comply with the underlying bulk requirements for single-family homes. Again, it's approximately two acres, the minimum lot size: 75 front and rear yard setbacks; 50-foot side yard setback. And based off of our central layout, the property area, which is 19.23 acres, we could subdivide the parcel into approximately five lots. One of those lots would house the monopole, if it was approved and constructed, and also potential stormwater management facility so the storm and utility use would still meet the bulk requirements of two acres. And then we have four other lots available for subdivision for housing, single-family units.
[T-MOBILE'S COUNSEL]: And with regard to that concept plan, first of all, that's one potential layout of the site that could be developed and consistent with the existing zoning ordinances here in West Deptford Township?
[KRUSE]: That is correct.
[T-MOBILE'S COUNSEL]: And is there anything about the proposed monopole and the telecommunications facility that's proposed that would in any way impact the ability to develop it in that fashion?
[KRUSE]: No, it would not.
Tinder, the certified real estate appraiser, testified about the characteristics of the Marple Farm property, the zone, and the distance between the proposed monopole and other structures. He described the four factors he considered when determining whether the proposed use would affect property values. The first factor was the type of use. Because the monopole would create "no noise, odor, traffic, light, or burden on municipal services," Tinder considered it a "passive" use that would not affect property values. The second factor was the character of the existing topography and vegetation, as well as that of its surrounding neighborhood. Based on Tinder's review of the site plan, the fact that no vegetation would be removed from the site, and maintenance of the buffer areas, he concluded that there would be no appreciable negative effect on home values. The third factor was the "existing character of the uses and their locations relative to the proposed use." Tinder opined that there would be no change to the predominant character of the zone, which would remain single-family residential. Tinder noted that the existing single-family homes are situated at a distance so as to be physically removed from the site, with tree-buffering somewhat offsetting any potential view of the monopole. The fourth factor Tinder described as the New Jersey marketplace's reaction to structures and installations of this sort. Based on his field observations of the site, his experience, the research he had conducted relative to appraisals near monopoles and towers, he testified that there was no evidence that the presence of a cellular tower proximate to a house had a negative effect on the property value.
Tinder produced and explained one of "numerous" studies he had completed on that topic. That study involved a 459-foot "double tower" constructed in a residential neighborhood in Randolph Township in Morris County. The "control home" was approximately 600 feet away from the structure. The control home's selling price was within one percent of the selling price of five comparable homes not in view of the tower. According to Tinder, the conclusion to be drawn from the study was that, "based upon this property's competition in its market area, it sold for exactly what the competition suggested it should have sold for irrespective of its location and proximity to and view of the nearby double tower."
This apparently means "two towers that are adjacent to each other" and "attached by lattice bridges at various locations."
Tinder noted that he had conducted numerous other such studies, all of which resulted in the same conclusion. When T-Mobile's counsel suggested that Tinder could discuss or produce those other studies, the Board chairman responded: "We've already recognized him as a professional. I think he's made his point here," and declined the offer. On this appeal, the Board belatedly seeks to challenge Tinder's qualifications and credibility, having precluded him from offering additional support for his opinion.
A Board member asked Tinder if he knew whether the presence of a cellular tower could raise a property's value. Tinder responded that he did not know because he had not specifically researched the issue; rather, his studies focused on the potential for diminution in value rather than appreciation. The suggestion in the Board's brief that Tinder's response undercut his credibility demonstrates the weakness of the Board's argument rather than that of Tinder's credibility.
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James Miller, T-Mobile's professional planner, testified next. Miller was asked if he would describe his observations and conclusions with regard to the issue of substantial detriment to the master plan and the zone. He testified extensively about the numerous factors that influenced his conclusion that the proposed use would result in no harm to the purpose or intent of the zone or the master plan. Those factors included: (1) a monopole is not expressly permitted in any zoning district in West Deptford, so most wireless applications would trigger the need for a variance; (2) the master plan dates back to 1986 and has not been updated, yet many wireless tower applications have been granted variances; (3) West Deptford's zoning ordinances do not contain an intent or purpose section, which is left to be inferred based on the lists of permitted uses; thus, discussing the intent or purpose of a zone has to be done by inference and based on general concepts of planning rather than anything explicit; (4) the use is passive; (5) the primary negative impact of the use was only visual, and would be mitigated to some extent by the surrounding vegetation; (6) tall utility structures are commonplace elements of residential zoning districts; (7) the increasing prevalence of and reliance of society on wireless communications; and (8) the limited physical footprint of the structure and related lack of potential to disrupt the land use patterns and character.
Miller then performed a Sica analysis. As part of the first step, he identified the multiple benefits of enhanced communication. The second step - potential detriment - was identified as the visual impact. The third step involved mitigating visual impact by maintaining a vegetative screen and setbacks. In balancing the positives with the negatives - the fourth step - Miller concluded that the quality and quantity of benefits outweighed the only negative, which was minor visual impact.
The Board now argues that Tinder's testimony was not "based on empirical data regarding how various uses impact the surrounding home or property values," but the record does not support that assertion. Tinder provided detailed testimony and presented an empirical study, as noted earlier. And, when Tinder offered to testify about additional empirical studies he had performed, his offer was rebuffed because the Board had "already recognized him as a professional."
The Board also takes issue with the comparable situation Tinder used to prove his conclusion concerning property values. While the comparable property (1) is located in Morris County, not Gloucester County, and (2) was approximately 600 feet away from the pole, rather than the 300 feet, as here, the Board ignores the fact that it involved a double tower, 459 feet high, rather than a 156 foot high monopole. In addition, the double tower was illuminated, unlike T-Mobile's proposed monopole. The Board itself points to no study that contradicts Tinder's opinion.
The Board criticizes Miller for his inability to opine about the feasibility of a developer actually developing low-density, high-priced homes on the Marple Farm tract. In fact, T-Mobile demonstrated that, even with the proposed monopole, the remainder of the property could still be subdivided into four other lots of equal size, all of which satisfy the township's zoning requirements for single-family homes in the R-6 zone.
As previously noted, Kruse testified concerning this issue. He stated "we could divide the parcel into approximately five lots. One of those lots would house the monopole." He went on to testify that the remaining four lots would be available to subdivide for single-family homes. T-Mobile's counsel then questioned Kruse:
COUNSEL: And we're not actually proposing to develop it, and there's no plan, there's nothing pending. This is just a concept to be able to address the question that's been raised as to whether or not this property could be developed for residential purposes consistent with the zoning ordinances?That testimony satisfied T-Mobile's burden to demonstrate a lack of substantial impairment to the zone or master plan.
KRUSE: Yes.
Petrongolo, who was neither sworn nor specifically qualified to testify as an expert, did not provide any facts or studies upon which he based his conclusions. In fact, the entirety of Petrongolo's opinion regarding substantial harm to the intent and purpose of the zone and master plan is essentially limited to two aspects: that a cellular communications tower was inconsistent with the R-6 residential zone and that there would be a negative impact, visual and otherwise.
However, any use for which a variance is required "is inherently at odds with the uses permitted in the zone as established by the ordinance," and thus necessarily implies inconsistency with the zone. TSI E. Brunswick, LLC v. Zoning Bd. of Adjustment, 215 N.J. 26, 39 (2013). And, as Miller testified, a cell tower is not a permitted use in any of West Deptford's zones, so there is no zone in which a monopole would be a consistent use.
T-Mobile and its experts do not dispute that the monopole will be a visual impact. However, T-Mobile produced simulated photographs of the monopole surrounded by the existing mature vegetation, thereby demonstrating how they lessen the impact as to the lower portion of the tower. Although that fact serves as a mitigating factor under the third Sica prong, Petrongolo failed to acknowledge it.
More significantly, while Miller performed a detailed and careful analysis of each of the four Sica factors on behalf of T-Mobile, Petrongolo's discussion of the Sica factors was cursory at best. He conceded the benefit of enhanced communication. He then identified the negative impact as visual, but suggested disagreement with T-Mobile's experts on the question of diminution of value. However, Petrongolo's suggestion is not supported by any report, study, or data.
As the trial judge aptly concluded, Petrongolo's testimony was essentially a net opinion. See New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 16 (1999) (noting that an expert's net opinion cannot support a board's finding that a monopole would substantially impair the intent of the zone plan and zoning ordinance). Petrongolo also failed to provide any facts to justify his conclusion that the presence of the monopole would prevent the remainder of the parcel from being developed in a manner consistent with the requirements of the R-6 zone.
We have noted, as did the trial judge, that Petrongolo was not under oath when he gave his expert testimony. N.J.S.A. 40:55D-10(d) explicitly requires that "[t]he testimony of all witnesses relating to an application for development shall be taken under oath or affirmation." The Board contends that Petrongolo "and all professionals had been previously sworn in regarding testimony in the instant matter and all other matters." (Emphasis added). Petrongolo, however, had not provided any expert testimony during the Board's earlier hearing in this matter. The Board points to no authority to the effect that a board's professional need not be sworn in at a hearing despite the plain language of N.J.S.A. 40:55D-10(d). See Concerned Citizens of Princeton, Inc. v. Mayor and Council of the Borough of Princeton, 370 N.J. Super. 429, 463 (App. Div.) (observing that the "only statutory requirement applicable to the testimony [of two experts] before the Planning Board" was that it be taken under oath), certif. denied, 182 N.J. 139 (2004).
In DeMaria v. JEB Brook, LLC, 372 N.J. Super. 138, 146 (App. Div. 2003), we noted that "not all errors mandate a reversal." In that case, we described a planning board's failure to swear in its consulting engineer and planner prior to taking their testimony as "problematic." Id. at 141. However, the error did not require reversal of the board's grant of site plan approvals because the unsworn testimony of the board's professionals was consistent with that of the applicant's experts, who were in fact sworn. Id. at 147. That is patently not the case here.
In sum, the competent evidence - including the thorough and complete Sica balancing performed by Miller - supports the conclusion that there would be no substantial impairment to "the intent and the purpose of the zone plan and zoning ordinance" from construction of the proposed monopole. N.J.S.A. 40:55D- 70(d). The use is passive. It generates no noise, no odor, no traffic, no waste, and no light pollution. The existing topography and vegetation will not be disturbed. The setback and other bulk requirements of the zone remain satisfied. The surrounding buffer zone and existing vegetation will mitigate the negative visual impact of the lower portion of the structure. We have applied the Sica balancing test in residential districts and concluded that minimal visual impact of a monopole would not constitute a substantial detriment. See Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjusmtent, 352 N.J. Super. 514, 533-34 (App. Div.), certif. denied, 175 N.J. 75 (2002). The remainder of the parcel can be developed consistently with the residential zoning requirements and intent despite the presence of the monopole.
For all of the foregoing reasons, we affirm Judge Anne McDonnell's orders of June 6, 2012, reversing the Board's denial of T-Mobile's use variance, and April 5, 2013, granting T-Mobile's motion to enforce the settlement and constituting "the requisite zoning approval required to file for a construction permit."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION