This is an action in lieu of prerogative writs brought by the Kingwood Township Volunteer Fire Company Number One (the Fire Company) and Bell Atlantic Mobile Systems, Inc. (B.A.M.S.) against the Board of Adjustment of the Township of Kingwood and the Township of Kingwood. B.A.M.S. and the Fire Company (jointly, the plaintiffs or the applicants) seek to overturn a decision of the Board of Adjustment of the Township of Kingwood (the Board) denying a requested use variance to expand an existing nonconforming use.
Plaintiff Fire Company is the owner of block 19, lot 401, a 3.003 acre tract in the AR-2 residential zoning district (the site). Existing on the site at the time of application was a 75-foot lattice antenna tower facilitating Fire Company communications and a 70- by 120-foot block building used as a firehouse. The lease agreement between the plaintiffs permits B.A.M.S. to replace the existing 75-foot tower with a larger 197-foot tower. The new 197-foot tower allows B.A.M.S. to adequately service its cellular communications coverage area while simultaneously permitting the Fire Company to improve its communication capabilities. The expansion of B.A.M.S.'s cellular communication coverage area is required by the terms of its franchise agreement with the Federal Communications Commission. To maintain the expanded 197-foot antennae tower, B.A.M.S. would also require authorization to construct a small 12-foot by 30-foot block building for installation of its modular equipment, parking for its service facilities, and an easement to reach the rear of the site where the tower and modular equipment building will be housed. The proposed B.A.M.S. tower and auxiliary structure would be enclosed in a eight-foot chain link fence buffered by eight-foot white pines.
Plaintiffs applied for the required use variance and requisite site plan approval for construction of the 197-foot tower and supporting auxiliary structure. Hearings Were held on January 8, 1992, and February 12, 1992, to consider the joint applicants' use variance for the proposed communications tower. At the latter meeting, the proposed variance was denied pursuant to a subsequent resolution adopted on March 10, 1992.
In the Board's final determination, it found that the 122-foot expansion of the nonconforming fire company tower was not an inherently beneficial use and that the site of the fire company's already existing 75-foot tower was not particularly well suited for B.A.M.S.'s proposed use. Invoking the controlling statute, N.J.S.A. 40:55D-70(d), the Board concluded that the B.A.M.S.'s proposed use did not meet the positive criteria set out in the statutory guidelines. In addition, the board determined that the applicants failed to satisfy the negative criteria by an enhanced standard of proof.
II. Requirements for a Use Variance under N.J.S.A. 40:55D-70(d).
Pursuant to N.J.S.A. 40:55D-70(d)(2), a use variance is required in order to expand a nonconforming use. Under N.J.S.A. 40:55D-70's statutory scheme, an applicant seeking to expand a nonconforming use must satisfy the following two criteria: "(1) that 'special reasons' exist for the variance [the "positive criteria"], and (2), that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and the zoning ordinance [the "negative criteria"]." Cerdel Constr. Co., Inc. v. East Hanover Tp., 86 N.J. 303, 307, 430 A.2d 925 (1981) (quoting N.J.S.A. 40:55D-70(d)). The statutory phrase "special reasons," used interchangeably with "positive criteria," has been generally construed quite broadly as "those criteria that promote the purpose of land use regulation and would promote the general welfare." Anfuso v. Seeley, 243 N.J. Super. 349, 370, 579 A.2d 817 (App. Div. 1990). However, in cases where the use variance sought is for an inherently beneficial use, the positive criteria or special reasons requirement is impliedly satisfied and the applicant is required to satisfy only the negative criteria. Sica v. Bd. of Adj. of the Tp. of Wall, 127 N.J. 152, 165, 603 A.2d 30 (1992).
A. The Standard of Review.
The review of the decision of a board of adjustment denying a use variance "begins with the recognition that the board's decision is presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable." Sica,supra, 127 N.J. at 166-67. This presumption of validity is extended to boards of adjustment recognizing that they "possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Id. at 167. Reviewing courts should generally "defer to (the board's) Judgement and its peculiar knowledge of local conditions so long as its decision is supported by the record and is not so arbitrary, unreasonable or capricious as to amount to an abuse of discretion." Jayber, Inc. v. Mun. Council of the Tp. of W. Orange, 238 N.J. Super. 165, 173, 569 A.2d 304 (App. Div. 1990); See also Com. for a Rickel Alternative v. City of Linden, 111 N.J. 192, 199, 543 A.2d 943 (1988); Medici v. BPR Co., 107 N.J. 1, 526 A.2d 109 (1987).
With a presumption of validity as a starting point, this court must carefully scrutinize the record below. Such a review of the record created by the Board during its evaluation of the positive and negative criteria under N.J.S.A. 40:55D-70(d), reveals that this deferential standard must give way. The record of the proceedings before the Board is replete with evidence contradicting the Board's findings. Therefore, the Board's denial of the use variance constitutes a reversible abuse of discretion.
B. Positive Criteria and the Determination of Inherently Beneficial Uses.
The Board's determination that cellular communications is not an inherently beneficial use permitted it to conclude that B.A.M.S. had not satisfied N.J.S.A.:40:55D-70(d)(2)'s positive criteria. This determination is greatly at odds with the increasing judicial ...