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New Brunswick Cellular Telephone Co. v. Township of Edison Zoning Bd. of Adjustment

February 7, 1997


Wolfson, J.s.c.

The opinion of the court was delivered by: Wolfson



New Brunswick Cellular Telephone Company d/b/a Comcast Cellular One, ("Comcast") appeals from a decision of the Zoning Board of Adjustment of the Township of Edison ("Board") denying its application for a variance from the requirement that cellular towers not be located within one thousand (1,000) feet of any school or residential dwelling. *fn1 The proposed cellular communications facility consists of an 80 foot high freestanding monopole with twelve (12) sectorized antennas and an equipment shelter, on 1.37 acres in the LI zone. *fn2

Hearings were held on Comcast's application before the Board on May 30, 1995, September 27, 1995, and October 17, 1995. At the hearings, testimony was presented by several witnesses on behalf of the applicant that: 1) the site of the proposed facility would be approximately 100 feet away from the nearest adjacent residential area; 2) there were no known health hazards related to the proposed installation inasmuch as the anticipated radio wave emissions would be approximately 635 times below that permitted by the New Jersey Administrative Code; 3) an additional tower was needed in the Edison area due to the large number of telephone users, causing the existing capacity of the cellular system to become overloaded; and 4) the use of cellular transmissions was important to assist local emergency squads, fire departments, the police and the 911 system.

On October 17, 1995, the Board denied Comcast's variance application. A Complaint in Lieu of Prerogative Writs was thereafter filed on January 26, 1996, seeking to reverse the Board's denial. That denial was vacated by this Court on July 12, 1996, and the matter was remanded back to the Board for reconsideration in accordance with the standards set forth in Coventry Square v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 650 A.2d 340 (1994) and Sica v. Bd. of Adjustment of Tp. of Wall, 127 N.J. 152, 603 A.2d 30 (1992).

On September 17, 1996, the Board again considered plaintiff's application and affirmed its prior decision to deny the variance. The resolution memorializing the Board's decision concluded that the applicant had failed to demonstrate that the deviation from the requirements of the ordinance was justified, *fn3 and concluded that the application would adversely impact the Zone Plan and the Master Plan of the Township of Edison.


In reviewing any decision of a zoning board, the court's poweris tightly circumscribed. In recognition of the fact that local officials are "thoroughly familiar with their community's characteristics and interests and . . . are undoubtedly the best equipped to pass initially on such applications for variance", Ward v. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954), a board's decisions, when factually grounded, are cloaked with a presumption of validity, which presumption attaches to both the acts and the motives of its members. Public bodies, because of their peculiar knowledge of local conditions, are thus allowed wide latitude in the exercise of the discretion delegated them under Municipal Land Use Law. N.J.S.A. 40:55D-1 through 136.

So long as there is substantial evidence in the record, the court may not interfere with or overturn the factual findings of a municipal board. Even when doubt is entertained as to the wisdom of the Board's acceptance of certain evidence or its rejection of other testimony, there can be no judicial declaration of invalidity absent a clear abuse of discretion by the board. Pullen v. So. Plainfield Plan. Bd., 291 N.J. Super. 303, 312, 677 A.2d 278 (Law Div. 1995), aff'd, 291 N.J. Super. 1, 6, 676 A.2d 1095 (App. Div. 1996). Consequently zoning determinations may be set aside only when the court has determined the decision to be arbitrary, capricious or unreasonable. Medici v. BPR Co., 107 N.J. 1, 15, 526 A.2d 109 (1987); Kramer v. Sea Girt, 45 N.J. 268, 296 (1965).

On the other hand, however, a board's determination or interpretation regarding a question of law is subject to a de novo review by the courts, Grancagnola v. Pl. Bd. Of Twp. of Verona, 221 N.J. Super. 71, 75-76 n.5, 533 A.2d 982 (App. Div. 1987), and is entitled to no deference since a zoning board has "no peculiar skill superior to the courts" regarding purely legal matters. Jantausch v. Bor. 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); Pagano v. Zon. Bd. Of Adj., 257 N.J. Super. 382, 296-97, 608 A.2d 469 (Law Div. 1992).


N.J.S.A. 40:55D-70(d)(3) provides that a "special reasons" variance is required if there is a deviation from a specification or standard pertaining solely to a conditional use. While the proposed cellular tower was found to be a permitted conditional use, the Board required the applicant to apply for a (d)(3) variance since the tower would exceed the 1,000 foot distance limitation applicable to conditionally permitted telecommunication towers in the LI zone.

Coventry Square, supra, 138 N.J. at 287, established the standards for reviewing an application to deviate "from a specification or standard . . . pertaining solely to a conditional use"' under N.J.S.A. 40:55D-70(d)(3). In developing the standards, the Supreme Court recognized that a conditional use could not be viewed in the same light as uses which are prohibited throughout the zone. Since a conditional use is not prohibited, it need not meet the stringent standards applicable to a d(1) commercial-use variance which the court summarized in Medici v. BPR Co., supra, 107 N.J. at 9-18. Still, both the d(1)and the d(3) variances require the applicant prove "special reasons" and satisfy the negative criteria. However, in a d(3) context, the primary ...

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