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Alpine Tower Co. v. Mayor

Decided: February 23, 1989.

ALPINE TOWER COMPANY, A JOINT VENTURE OF TELE-A-PAGE, INC. AND U.A. COLUMBIA TOWER COMPANY, PLAINTIFF-APPELLANT,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF ALPINE, A MUNICIPAL CORPORATION; ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF ALPINE; ROBERT WILSON, CONSTRUCTION CODE OFFICIAL OF THE BOROUGH OF ALPINE, DEFENDANTS-RESPONDENTS



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

King, Brody and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Plaintiff Alpine Tower Company is the owner of a regional communications facility constructed on a 15 acre site in the Borough of Alpine. The site is located 550 feet above sea level on top of the Palisades near New York City. Thus, it is especially suitable for communications purposes.

In the late 1930's, Major Edwin Howard Armstrong, a pioneer of FM radio, built a 400-foot transmission tower on the

site. In addition to the transmission tower, the site contains a 100-foot tower with an out-of-service radar antennae, three buildings, three huts and three trailers. The trailers contain a variety of electronic equipment required to operate the communications facility. Also, the Hackensack Water Company owns and operates an elevated water tank located in the northern corner of the property.

The users of plaintiff's communications facility include a cable television company which services many municipalities in the New York-New Jersey metropolitan area, an independent satellite distributor of cable television programming, Fairleigh Dickinson's FM radio station, a Federal Bureau of Investigation mobile communications facility, a United States Department of Justice international customs control communications facility and several large companies which provide paging services to, among others, doctors, ambulances and fire security companies.

Insofar as the record indicates, all improvements on plaintiff's site were constructed prior to the property being zoned. However, the property is presently zoned residential. Thus, plaintiff's communications facility is a nonconforming use.

This case involves plaintiff's efforts to obtain the required municipal land use approvals to replace the trailers on the site with a building capable of housing the electronic equipment now in the trailers.*fn1 In October 1982, plaintiff submitted an application to the Alpine Borough Board of Adjustment (the Board) for a variance and site plan approval to permit the construction of a single-story 4,900 square foot building directly beneath the 400-foot transmission tower. In support of its application, plaintiff presented evidence that the trailers, some of which date back to the 1940's, are ill-suited for modern electronic equipment, because the new, highly sophisticated

technology that plaintiff seeks to install requires a constant temperature of 70 degrees and a dust-free environment. Plaintiff also presented evidence that a permanent building to replace the trailers would provide greater security for the equipment and improve the appearance of the property.

Following four hearings held from December 7, 1982 to March 31, 1983, the Board voted unanimously to approve the application and subsequently adopted a resolution of approval. The Board made the following pertinent findings of fact and conclusions of law:

6. The Alpine Tower site has been used for a number of years as a communication[s] site and the use of the new facility to house electronic equipment is consistent with the past use of the site.

7. The [Board] further finds that based upon the data available to the scientific community a[t] this time, the RF radiation found at the Alpine Tower site does not present a health hazard to the people of Alpine presently.

8. Approval of [a] use variance will not create a substantial detriment to the public good or substantially impair the intent and purpose of the zoning plan of the Borough of Alpine; furthermore, there will be no change in the basic operation of the site together with uniqueness of the location of site for its intended purpose, there are special reasons for granting the use variance requested herein.

Plaintiff subsequently determined that the 4,900 square foot building authorized by the 1983 resolution had insufficient capacity to house all the electronic equipment of users of the facility. Consequently, plaintiff submitted a second application in April 1985 for "site plan approval" for a single-story 6,900 square foot building. Following a hearing on May 7, 1985, the Board voted 3-2, with one abstention, to approve the application. Following the vote, the Board's attorney ruled that the application had not passed because plaintiff actually sought a use ...


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