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Sellitto v. Borough of Spring Lake Heights

July 10, 1995

ANTHONY M. SELLITTO, JR., PLAINTIFF-APPELLANT,
v.
BOROUGH OF SPRING LAKE HEIGHTS, THE MAYOR AND COUNCIL OF THE BOROUGH OF SPRING LAKE HEIGHTS, ALBERT P. RATZ, JR., CONSTRUCTION OFFICIAL OF THE BOROUGH OF SPRING LAKE HEIGHTS, SMSA LIMITED PARTNERSHIP, A NEW YORK LIMITED PARTNERSHIP, AND BELL ATLANTIC MOBILE, DEFENDANTS-RESPONDENTS.



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

Approved for Publication September 21, 1995.

Before Judges Villanueva and Braithwaite. The Opinion OF The Court Was Delivered BY VILLANUEVA, J.A.D.

The opinion of the court was delivered by: VILLANUEVA

THE OPINION OF THE COURT WAS DELIVERED BY VILLANUEVA, J.A.D.

Plaintiff appeals, pursuant to leave granted, from the denial of his request for injunctive relief to restrain defendant, Borough of Spring Lake Heights (borough), from leasing certain of its municipal property to defendants SMSA Limited partnership and Bell Atlantic Mobile for their use as a cellular telephone communications facility. The property in question was already being used by the borough as a water tower. Bell proposed to construct antenna panels on the existing tower and build an accompanying equipment storage shed nearby. We reverse.

As of all relevant dates, the borough was the owner of Lot 18, Block 24. plaintiff was the owner of Lot 21.02, Block 24, which was adjacent to the borough's property, both of which are in the borough's R-3 residential zone. Permitted principal uses in this zone included "essential services" (§ 22-606.1 of the borough's zoning code, revised 8/89).

Essential services shall mean the erection, construction, alteration or maintenance by a public utility or municipal agency, of underground or overhead transmission, distribution or collection systems necessary for the furnishing of adequate service by such utility or agency to the use on the same lot or surrounding neighborhood, or for the public health, safety or general welfare.

[§ 22-302 of the borough's zoning code, revised 8/89.]

On November 22, 1993, the borough by resolution #104-1993 authorized the mayor to enter into a certain option and lease agreement with Bell Atlantic *fn1 with respect to this property, which was executed on December 27, 1993.

According to this agreement, the borough granted an option to Bell Atlantic to lease space on an existing water tower situated on the borough's property

for the purpose of installing, maintaining and operating an antenna array and associated transmission lines and mounting apparatus, and to lease a portion of said real property consisting of approximately 800 square feet for the purpose of constructing, maintaining and operating a mobile communications facility, consisting of an equipment building of approximately 312 square feet to be constructed by [Bell Atlantic] on the premises at the base of the Tower, with a right of way for access thereto, the right to install and maintain wires, cables and necessary connections between the equipment [Bell Atlantic] will install in the equipment building and the antenna array of up to twelve (12) antennas, . . .

For consideration of $500, Bell Atlantic obtained the right to exercise its option up until May 31, 1994. On February 7, 1994, the option was exercised by formal notice to become effective March 1, 1994. The lease was for a five-year term, with options to extend for three additional five-year terms and one-year terms thereafter, and the annual rental for the first five years was to be $24,300. The lease was contingent upon Bell Atlantic's ability to use the premises as contemplated by obtaining all certificates, permits, licenses and other approvals that may be required by any federal, state or local authority. The lease was not submitted for public bidding because it was the legal opinion of Robert R. Blasi, attorney for the borough, that this was not required by law.

Bell Atlantic held a radio common carrier operating license issued by the Federal Communications Commission, and was one of only two such licensees in the region who was authorized to provide such services. According to the certification of Blasi, Bell Atlantic had first approached the borough in the summer of 1993 regarding its plan to erect a communications facility. The borough's police chief conducted an exhaustive investigation of such facilities and worked with Bell Atlantic to locate a site that would have little or no impact on the surrounding area. The site selected was the site of the borough's elevated water tank, two additional storage tanks and main pump station.

Plaintiff attacked the proposed use on two grounds. First, he claimed that the lease was null and void because it failed to complywith the competitive bidding requirements of the Local Lands and Buildings Law, N.J.S.A. 40A:12-1 to 12-30 (the LLBL), and second, that the borough failed to adhere to its own zoning ordinances by allowing a nonpermitted use to be constructed in this residential zone and by not requiring a variance and site plan approval for the project.

On April 29, 1994, plaintiff filed a verified complaint for declaratory judgment with restraints in the Superior Court of New Jersey against the following defendants: the Borough of Spring Lake Heights, the Mayor and Council of the borough, Albert P. Ratz, Jr. (the construction official of the borough) and Bell Atlantic. This action will be referred to as the "borough litigation." Plaintiff sought an order declaring Bell Atlantic's lease of the borough's property to be null and void, requiring the borough to submit the lease to competitive bidding, requiring Bell Atlantic to obtain variance and site plan ...


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