New Brunswick Cellular Telephone Company (Cellular One), appeals from a decision of the Old Bridge Township Planning Board denying its application for a height variance and site plan approval to develop and operate a base station and a 160-foot antenna tower (a permitted use) on a 3.74 acre parcel located in the OG-1 zoning district.*fn1 The maximum height permitted is thirty feet.
A public hearing on this application was held before the Planning Board on February 2, 1993.*fn2 In addition to hearing from the
applicant's planning expert, who opined that the proposed radio transmission tower was an accessory structure -- a Conclusion ultimately embraced by the Planning Board -- testimony was also elicited in support of the applicant's contention that the proposed tower would provide regional and community benefits to motorists and governmental entities (such as the emergency 911 service), as well as police and fire personnel. Proof that the existing cell sites were inadequate, resulting in interrupted and dropped phone calls in this portion of the Route 9 corridor, was also introduced.
The undisputed evidence also established that: (1) the height of the antenna was integrally related to the effectiveness of the cellular coverage; (2) these signals would not interfere with normal telephone, radio, or television service or reception in the area; and (3) the maximum signal output from this station would be approximately 2700 times below that permitted by the New Jersey State Code.
A resolution memorializing the Board's decision denying the application was adopted on March 2, 1993. Although the Board acknowledged having jurisdiction since it deemed the tower to be an "accessory" rather than a "principal" structure, it concluded that the 160 foot tower would cause a detrimental impact to the area, the Zone Plan and the Master Plan.*fn3 This appeal followed.
II. THE CLAIMED EXEMPTION FROM THE HEIGHT ORDINANCE
Initially the applicant contends that no height variance is required for its tower, relying on Paragraph 7(F)3 of the Old Bridge Code, which provides in part: "In all districts except the O-G zone, television and radio antennas may extend above the height limit by not more than twenty-five feet . . . ." (emphasis added). Plaintiff argues that this language specifically exempts television and radio antennas that are located in the OG zone from the height limitations. The Board, predictably, relies on the plain language of the ordinance to support its contention that the thirty-foot height limitation applies.
The question of whether the height restrictions apply to the proposed use is one of law which must be resolved by this court (Pagano v. Zoning Bd. of Adjustment of Twp. of Edison, 257 N.J. Super. 382, 396, 608 A.2d 469 (Law Div.1992); Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96, 124 A.2d 14 (Law Div.1956), aff'd, 24 N.J. 326, 131 A.2d 881 (1957)) the interpretation of an ordinance being a subject essentially within the province of the courts. Grancagnola v. Planning Bd. of Twp. of Verona, 221 N.J. Super. 71, 75-76, 533 A.2d 982 (App.Div.1987). Consequently, the court is bound neither by the testimony of an expert, who opines on the legislative intent, nor by the ultimate interpretation embraced by the Board. The standard of review is clearly de novo. Pagano, supra, 257 N.J. Super. at 397, 608 A.2d 469; Grancagnola, supra, 221 N.J. Super. at 75-76 n. 5, 533 A.2d 982.
Although the court is not restricted to the four corners of the zoning ordinance or the master plan in seeking to glean the legislative intent, Pagano, supra, 257 N.J. Super. at 396-97, 608 A.2d 469, no additional evidence (other than an earlier version of the ordinance) was presented from which that intent might have been more readily ascertained.
Nonetheless, to determine the legislative intent, this court has reviewed and has considered that:
1. Height restrictions do not apply to: church spires, belfries, cupolas, penthouse, chimneys, ventilators, skylights, water tanks, bulkheads, similar features, and necessary mechanical appurtenances usually carried on above the roof level.
2. Radio and telecommunications antennas are permitted uses within the OG zone.
3. A height restriction of thirty feet is generally applicable in the OG zone.
4. There is an increased height exception available to antennas in zones other than the OG zone.
5. The master plan is silent.
Inasmuch as the ordinance expressly exempts a far bulkier and more visible water tower from the thirty-foot height limit, logic would certainly suggest that a like exception should exist for telephone communication towers, especially since both are routinely required to be higher than thirty feet to be functional. Ironically, if the Board's interpretation were correct, where communications facilities and equipment are specifically permitted, they are limited to a height of thirty feet, but where they are prohibited they may be an additional 25 feet higher.
Without specifically deciding the issue,*fn4 the interpretation urged by the Board renders the ordinance vulnerable to constitutional attack under both the substantive Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution in that: (1) the ordinance distinctions fail to substantially advance any legitimate governmental objectives (see, e.g., Katobimar Realty Co. v. Webster, 20 N.J. 114, 118 A.2d 824 (1955); and see, Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987)) and (2) the ordinance distinguishes between structures such as water towers and radio
antenna towers without any apparent rationale therefor (See, e.g., Exxon Co., U.S.A. v. Livingston Twp. in Essex County, 199 N.J. Super. 470, 477, 489 A.2d 1218 (App.Div.1985)).
Although courts may engage in "judicial surgery"*fn5 to avoid an unconstitutional construction and may supply or delete ordinance language where to do so may reasonably be implied, the court cannot conclude in this context that the governing body would advocate such an "operation".*fn6 Compare, Princeton Cablevision, Inc. v. Union Valley Corp., 195 N.J. Super. 257, 270, 478 A.2d 1234 (Ch.Div.1983). (If "necessary to engage in 'judicial surgery' to save an ailing enactment, and if it appears that the legislature would have wanted the statute to survive, it is the court's duty to operate.")
Despite its apparent flaws I am satisfied that the Old Bridge governing body would not advocate the extensive "surgery" probably needed to correct the deficiencies in this ordinance. Nonetheless, the applicant's claimed exemption from the height restrictions does not accurately reflect the ...