On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Approved for Publication August 4, 1997.
Before Judges Long, Skillman and Cuff. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by
Plaintiff Pierce Estates Corp. Inc. sought a variance pursuant to N.J.S.A. 40:55d-70(D) from defendant, Bridgewater Township Zoning Board of Adjustment (Board) to build a communications tower. The Board denied the variance. In an action in lieu of prerogative writs, Pierce challenged the denial which was upheld. This is an appeal from that decision.
The case began when Pierce filed a development application with the Board seeking the variances required for it to construct a radio tower on its property and to continue the existing two family dwelling use of the lot. A public hearing was held.
The following testimony was adduced at the hearing: Pierce owns property in the Township of Bridgewater known as lot 41 in block 7401 on the Bridgewater Township Tax Map, which property is located on Miller Lane (a private road) and consists of a 10.2 acre tract of land in the R-50 zone. The property is improved with a two story dwelling, a garage and a well house. Pierce seeks to erect a 343 foot high communications tower on the property. The tower would be located approximately 110 feet from the two family residential home owned by Pierce and approximately 610 feet from the northwestern corner of property located on Cram Trail and owned by David Wang, which is the closest residence to the property. The elevation of the tower would be 671 feet above sea level. There would be a roadway constructed to access the proposed tower, as well as an unmanned service building which would measure 12 feet by 42 feet and would be protected by a six foot high chain link fence. The tower would be supported by six guy wires anchored to the ground at six different locations and all of the anchors would be surrounded by six foot high fences for security purposes. Pierce claims that "the tower is designed in such a way that, should it collapse because of high winds or from any other cause, it will not do any damage to the only home which is in close proximity to the tower since the tower will fall like a 'carpenter's' collapsible ruler within itself and will not extend beyond the location of the various guy anchors, which support the tower."
A report prepared as part of Pierce's site plan application by James R. Housten, Jr., P.E., L.S., & P.P., indicates that: *fn1 (1) Wastewater management on this site will be apparently unaffected by this project; (2) no stream encroachment permits are required as part of the project; (3) the project will not generate any solid waste to be stored on the site; (4) the project will not have any impact on the region's air quality; (5) the project will virtually create no impact to the existing traffic patterns, other than construction traffic; and, (6) there are no wetlands on the site. Housten noted that "the obvious unavoidable impact from this project will be the visual impact of the tower particularly from the south." He stated that this will be mitigated by "a very thin, inconspicuous profile" and tree clearing will be kept at a minimum. Housten reported two short term adverse impacts anticipated from the construction of the tower: (1) potential for increased soil erosion when the steep slopes are exposed during construction, which will be mitigated by soil and sediment control measures detailed on the site plan; and, (2) noise generated during the tower's erection, but this will be limited to daylight hours in accordance with Bridgewater's construction ordinances.
Sandy Drysdale, the owner of a communications service company, testified with respect to two-way radio systems, cellular phone systems and pager systems and indicated that there were certain communication "dead zones" in portions of the area to be serviced by Pierce's tower. Drysdale stated that she performed studies of the area in question in an effort to see what is provided by the existing tower and what would be provided by the proposed tower. She also "talked with people at Somerset County Medical Center ... the people at Bridgewater Police ... the office of emergency management at Somerset County ... personnel at Bridgewater OEM and with Public Service Electric & Gas Company, all of which have communication problems." She indicated that the height of the tower is needed to overcome an obstruction from a mountain ridge which inhibits communications. She further stated that plaintiff's tower would not serve as a duplicative coverage source, but rather an "overlay" or "continuation." She explained that
what they're trying to do is create a seamless communication network so that you don't have dead areas so that in public safety, a police officer can communicate with his portable, which is a big problem right now....
... The benefit of this site is because of its location, its height and the fact that it has the ability to cover areas that are not now covered.
On cross-examination, Mrs. Drysdale admitted that as of the time of the hearing, the County was not interested in using the tower for 911 communications; the police reported no need for the tower; there was no signed contract or letter of intent from any prospective user of the tower; nor was there actual testing performed with respect to the project.
John Haelig, the president of Pierce, indicated that he purchased title to the property in 1980 from his aunt. In describing the idea for the tower project, he stated:
I proceeded into the tower project because I had noticed that in various communities, various companies were making applications for towers and I felt that if I were to build -they need a tower, they need antennas, and I felt if I could build one tower in one place in an area accessible to them by line of sight and other ways, that it would be more economically feasible for them to pay rent for the tower for their antenna then it would be to build and maintain their own tower.
While Haelig represented that there are persons interested in the tower, he acknowledged that he had no firm commitments or contracts. In fact, he testified that the police department and the local medical center did not currently indicate a need for the tower, although the people in charge of the 911 operations asked him to keep them informed of the tower's progress, again without any form of commitment. When asked about his Discussions with the County regarding the 911 area system, Haelig responded:
The County 911 system has never been fully developed. I have expressed to them what my plans are and I have expressed to them that as a result of Mrs. Drysdale's test, our indications are that completing the tower, we could tie together the entire 911 system including Bernardsville, Far Hills, Bedminster, the north eastern end of the township including Millington, Basking Ridge area, the extreme end of the township in North Plainfield and we could form a line of ...