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Nynex Mobile Communications Co. v. Hazlet Tp. Zoning Bd. of Adjustment

Decided: June 17, 1994.

NYNEX MOBILE COMMUNICATIONS COMPANY, PLAINTIFF-RESPONDENT,
v.
HAZLET TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANT-APPELLANT.



On appeal from Superior Court, Law Division, Monmouth County.

Before Judges Shebell, Long and Landau.

Long

The opinion of the court was delivered by

LONG, J.A.D.

In July 1992, pursuant to N.J.S.A. 40:55D-70(d), plaintiff Nynex Mobile Communications Company applied to the Hazlet Township Zoning Board of Adjustment for a variance which would permit the construction of a mobile communications facility on Block 120, Lots 64 and 64.01, owned by Nero Equipment Company and Shorelands Water Company. The lots, totalling 6.41 acres, are located in a residential zone, known as R-100. Lot 64.01 contains a water tank, treatment plant and treatment lagoons. Lot 64 contains the Shorelands Water Company office building, the Nero Equipment Company garage, gravel packing and storage areas for supplies and construction equipment. The mobile communications facility would consist of a number of panel and whip antennae located on top of the water tower on Lot 64.01 while an equipment shelter would be placed on a leased portion of Lot 64.

Nynex conducted extensive studies to determine the grid layout which would allow optimum cellular telephone coverage to Monmouth County. In determining where in Hazlet it should locate the mobile communications facility, Nynex placed a transmitter on top of the water tower and collected data signals to determine how the antennae, which would be located on top of the water tower, would integrate with the rest of Nynex's system. It was determined by Nynex that the site is the most suitable because it meets the strict technical requirements needed to service the cellular system and the existing water tower eliminates the need to build a monopole on which to place the antennae. Nynex uses at least fifty water towers for cell sites. The site is in the center of the area which is in need of service. Nynex concluded the site would allow it to increase service without any real detriment to the area.

Peter Longo, a licensed professional engineer employed by French & Perillo Associates, testified as to the configuration of the site. The site is bounded by Pine Knot Avenue and Middle Road to the south, a large wooded tract to the east and residences to the north and west. The perimeter of the site is buffered by a row of trees which are roughly forty to sixty feet in height. There is a fence that runs between Lots 64 and 64.01.

The intended location of the mobile communications facility spans a portion of both lots. The antennae would be constructed on top of the existing 130.28 foot water tower which is located on Lot 64.01, while the equipment shelter would be located on a leased portion of Lot 64. Longo testified that the monitoring of the mobile communications facility would be done from a remote location and would normally only require a monthly maintenance visit. According to Longo, Nynex's application would not have any adverse impact on the zoning scheme or plan in the municipality nor would it adversely impact the health and safety of the community.

Hans Leutenegger is the general manager of Network Engineering for Bell Atlantic Mobile Systems and has been an electrical engineer in cellular design with Bell Atlantic Mobile Systems for over five years. He and Longo described the mobile communications facility's antennae. Nine panel antennae, each about four feet high and one foot wide, would be mounted on the railings on the side of the water tower. Nynex had tested the railings at the top of the water tower to assure that they were sturdy enough to support the antennae. Through counsel, Nynex offered to submit its calculations to the Board to demonstrate the adequacy of the railings. It further offered to replace the railings if the Board found them inadequate. In addition to the panel antennae, there would be three omnidirectional whip antennae roughly ten feet in height and between an inch and a half and two and three quarter inches in diameter to be located on the top of the water tower.

The equipment shelter would be located on leased premises, approximately 1000 square feet located on Lot 64. It would be bordered by an eight foot chain link fence with a gate. The equipment shelter is a prefabricated building with concrete walls four to six inches thick and a steel door. The equipment shelter would be approximately twelve by twenty six foot facility (292.5 square feet), with electronic equipment, racks of transmitters and coaxial cable running underground from the transmitters to the antennae. Although no personnel would be at the site, the equipment shelter would contain several alarms. The alarms, when activated, would signal to the monitoring station in Jersey City. No alarm would be heard outside the equipment shelter.

Leutenegger testified about the way in which mobile communications facilities must be located and presented a video to support his explanation. He explained that the initial grid included sites in East Brunswick, Freehold, Matawan, Red Bank, Navesink, Long Branch and Tinton Falls. Additionally, at the time of the hearing, a facility was under construction in Holmdel to cover service problems on the Garden State Parkway. Nynex determined that the Hazlet site is important because it provides service coverage to Route 35, Route 36, Middle Road and Union Road. The Hazlet site will provide service where Nynex receives complaints about gaps and unsatisfactory reception. Leutenegger also described the use of the cellular telephone during emergencies and indicated that calls to 911 are free. Nynex also has a number "star CG" which can be used to connect a distressed boater directly to the Coast Guard. Cellular services are used by emergency personnel.

Nynex also presented Lester Nebenzahl, who was the Township planner in Hazlet Township when the master plan was adopted in 1978. Nebenzahl drafted the master plan and the zoning ordinance. In preparing his opinion on Nynex's application, Nebenzahl reviewed the site plan, the Township's development review ordinances, the master plan, the master plan reexamination report and state statutes which relate to the application. In August 1992 he visited the site and conducted interviews with various professionals, representatives of Nynex and the preparers of the engineering documents. Nebenzahl described the application as being consistent with the zoning and the master plan of the Township. He conceded that the R-100 zone, where the mobile communications facility would be located, is residential but emphasized that in 1978 this type of antennae use was not contemplated and therefore would not have been listed as a permitted use in any zone. Nebenzahl stated that Nynex's application satisfies the general goals of the local master plan and the local development regulations, to promote the general welfare, to have efficient use of land, and to promote and have sufficient space and appropriate locations for a variety of uses.

Nebenzahl said that the site is particularly suited for the mobile communications facility because the geographic location would fill the need for communications service for this general area. He testified that cellular communication is increasingly important in business affairs and emergency calls. Additionally, he stated that the site was already being used for a non residential purpose and had almost seven times the minimum lot area required in the zone. The site's size and existing physical features, including the water tower, make it uniquely suited for the mobile communications facility.

Nebenzahl further opined that there was no detriment to adjoining properties or the surrounding neighborhood and that the use would not impair the intent of the Township's plan or ordinance. The size and shape of the site enables the shelter to be located away from any sensitive land uses and the existing water tower enables the antennae to be erected without the need to construct a monopole. The mobile communications facility will not generate any significant activity. There will be little to no increase in traffic, and no water, air or noise pollution. Additionally, there will be minimal disturbance to the existing site. The visibility of the antennae is being minimized by its design and color and, given the mass and scale of the existing water tower, the antennae will be virtually unseen. Nebenzahl also gave examples of how mobile telephones can be used in emergencies. In concluding, Nebenzahl recommended that the use variance be granted.

Louis G. Cornacchia, an electronic engineer with thirty years of experience, including employment with the Department of Defense working with microwave systems, also testified for Nynex. He has designed microwave and special purpose computers. Cornacchia testified that the Nynex cellular system is a low powered system similar to a radio. The power levels involved are low by comparison to AM-FM and T.V. transmitters. The power cellular system Nynex has proposed in its application puts out between .8 and 1 microwatt per centimeter squared. Television signals are broadcast from towers with power levels of up to 5,000,000 watts and commercial radio stations broadcast with power levels up to 100,000 watts. Most cellular antennae are transmitting at 100 watts or less. The transmission frequency used by the mobile communications facility has been extensively studied. Cornacchia testified that it has been determined that the emissions from the transmission frequency do not pose any threat to the public's health. New Jersey has adopted a standard of 2600 microwatts per centimeter squared. According to Cornacchia, the Nynex tower will produce 3000 times less than that standard. Massachusetts has a stricter standard, 500 microwatts per centimeter and Nynex will be 600 times below that. Cornacchia prepared a report which evaluated radio emissions for the Board. His testimony was based on this report. According to the ...


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