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L.I.M.A. Partners v. Borough of Northvale

Decided: August 12, 1987.

L.I.M.A. PARTNERS, A NEW JERSEY PARTNERSHIP; VIDEO RENTALS, INC. AND ATLANTIC SATELLITE COMMUNICATIONS, INC., NEW JERSEY CORPORATIONS, PLAINTIFFS-RESPONDENTS-CROSS-APPELLANTS,
v.
THE BOROUGH OF NORTHVALE; BOROUGH OF NORTHVALE ZONING OFFICER GARY DELMORO; MAYOR AND COUNCIL OF THE BOROUGH OF NORTHVALE, DEFENDANTS-APPELLANTS, AND THE BOARD OF ADJUSTMENT OF THE BOROUGH OF NORTHVALE, DEFENDANT-CROSS-RESPONDENT. L.I.M.A. PARTNERS, A NEW JERSEY PARTNERSHIP, PLAINTIFF-RESPONDENT-CROSS-APPELLANT, V. THE BOROUGH OF NORTHVALE, AND THE MAYOR AND COUNCIL OF THE BOROUGH OF NORTHVALE, DEFENDANTS-APPELLANTS, AND BOARD OF ADJUSTMENT OF THE BOROUGH OF NORTHVALE, DEFENDANT-CROSS-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Michels, Skillman and Landau. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

This appeal involves the denial by defendant Board of Adjustment of the Borough of Northvale (the Board) of an application by plaintiff L.I.M.A. Partners (LIMA) for a use variance. It also involves several issues as to the interpretation and validity of Northvale's zoning ordinance.

Plaintiffs are affiliated companies involved in the satellite communications field. Plaintiff LIMA owns two properties in Northvale. One property, located on Pegasus Avenue, is occupied by an existing communications facility, which LIMA leases to plaintiff Atlantic Satellite Communications, Inc. LIMA proposes to construct a second facility on its other property located on Union Avenue.

Plaintiffs' communications business involves the receipt and transmission of signals from the earth to satellites. To conduct this business, plaintiffs use satellite dish antennas. These antennas are approximately 35 feet in diameter and 35 feet in height. Programs are beamed to a satellite through the dish antennas and then sent from the satellites to subscribers who have the capability of receiving the signals at home. Plaintiffs also use the satellite dish antennas to transmit programs to television stations throughout the country, to receive transmissions from satellites of live sporting events and to service retailers who use the system for consumer credit reports.

Both of LIMA's properties in Northvale are located in a light industrial zone in which specified industrial uses are permitted. Dish antennas are not expressly prohibited in this zone. However, the parties agree that the zoning indirectly prohibits dish antennas by failing to list them as a permitted use and by expressly stating that all uses not permitted are prohibited.

In 1981 the Board granted a use variance and site plan approval for the erection of two dish antennas on the Pegasus Avenue property and in 1983 it granted a variance and site plan approval for a third dish at that location. However, Atlantic Satellite Communications found it necessary to bring onto the property an additional portable dish antenna, which it rented from plaintiff Video Rentals, Inc., in order to test satellites and other equipment. In February 1984, the Northvale zoning officer ordered plaintiffs to cease use of the portable antenna on the grounds that it was not a permitted use in the zone and was not authorized by either of the variances previously granted.

Plaintiffs filed a prerogative writ action attacking this order. They contended among other things that portable antennas are a permitted accessory use in the zone, that the regulation of dish antennas is preempted by the Federal Communications Act, 47 U.S.C. ยง 151 et seq., and that the Northvale zoning ordinance, as interpreted by Northvale's zoning officer, violates the First Amendment. Northvale counterclaimed to enjoin plaintiffs from placing dish antennas on any of their properties without the prior approval of the Board.

After filing this lawsuit, plaintiffs also appealed the zoning officer's order to the Board. However, the Board affirmed the Zoning Officer's determination that portable dish antenna are not a permitted accessory use in the light industrial zone. By supplemental complaint, plaintiffs also challenged this determination.

Plaintiffs' second lawsuit arises out of their efforts to develop a second communications facility on Union Avenue. This

site consists of 7.65 acres of vacant land located approximately 1500 feet from the existing facility on Pegasus Avenue. Plaintiffs' development plans for this site would comply with the applicable bulk requirements in the zone.

Plaintiffs applied for a use variance to permit the erection of dish antennas on the Union Avenue property. This application was denied, based primarily on the Board's concerns that the radiation effects of microwaves pose a health hazard.

Plaintiffs then filed a complaint in lieu of prerogative writ which alleged that the planned erection of dish antenna on the site was a permitted accessory use and, in the alternative, that the denial of plaintiffs' application for a use variance should be reversed because it was arbitrary, capricious and unreasonable. Plaintiffs also challenged the constitutionality of Northvale's zoning ordinance, insofar as it had been construed to prohibit the erection of dish antennas, on essentially the same grounds asserted in the suit relating to the Pegasus Avenue property.

On September 24, 1984, the trial court remanded this matter to the Board with a direction that they "consider only zoning evidence and issues" and "exclude and not consider any evidence or issues with respect to radiation or radiation health issues." After rehearing the matter, the Board again denied the variance application. Several members of the Board expressed "aesthetic" concerns as the basis for the denial, although the Board's resolution simply recites in conclusionary language that the statutory prerequisites for the grant of a use variance have not been met.

By order dated February 8, 1985, the Pegasus Avenue and Union Avenue lawsuits were consolidated and the part of the consolidated cases challenging the constitutionality of Northvale's zoning ordinance was scheduled for trial.

The case was tried over three days in March 1985 and the trial court decided the matter by oral opinion on April 11, 1985. The trial court affirmed the Board's determination that dish antennas are not a permitted accessory use in the light industrial

zone. It also affirmed the Board's denial of plaintiffs' application for a use variance with respect to the Union Avenue property. However, the trial court concluded that Northvale's zoning ordinance violates the First Amendment by totally prohibiting the erection of dish antennas in Northvale. A judgment was entered reflecting these determinations and directing Northvale to permit plaintiffs to use a single portable dish antenna on the Pegasus Avenue property and to install and use six dish antenna on the Union Avenue property.

Northvale appeals and plaintiffs cross-appeal from the parts of the judgment affirming the decisions of the Board.

We affirm the part of the trial court's judgment which declares that dish antennas are not a permitted accessory use in the zone where plaintiffs' properties are located. However, the trial court's findings of fact and conclusions of law are inadequate to enable us to pass upon the part of the judgment affirming the Board's denial of a use variance for the Union Avenue property. Moreover, the Federal Communications Commission adopted a new regulation during the pendency of this appeal which preempts local zoning restrictions of dish antennas under certain circumstances. In our view, the trial court should consider the impact of this regulation upon the validity of Northvale's zoning ordinance before we consider its constitutionality. The trial court also failed to consider all relevant factors in concluding that Northvale's prohibition against dish antennas violates the First Amendment. Accordingly, we conclude that the case must be remanded to the trial court for reconsideration of its conclusions and amplification of its opinion in these respects.

I

The following accessory uses are permitted in the light industrial zone in which plaintiffs' properties are located:

(1) Off-street parking.

(2) Fences or fence ...


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