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New Brunswick Cellular Telephone Co. v. Borough of South Plainfield Bd. of Adjustment

October 17, 1997


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

Approved for Publication October 18, 1997.

Before Judges Shebell, D'Annunzio and A.a. Rodriguez. The opinion of the court was delivered by Shebell, P.j.a.d. Judge William M. D'annunzio, Dissenting.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by


In December 1994, New Brunswick Cellular Telephone Company d/b/a Comcast Cellular Communications ("Comcast") applied to the South Plainfield Board of Adjustment ("Board") for variances necessary to erect an unmanned cellular communications facility at 313 Durham Avenue, South Plainfield, located in the M-3 zone. The proposed facility was to consist of a four hundred and fifty-six (456) square foot shelter housing radio equipment, and a ninety (90) foot high steel monopole with up to twelve 12" by 54" panel-type antennas.

The Board conducted hearings on the application on February 7, 1995, April 4, 1995, and May 2, 1995. At the February 7 Hearing, Comcast presented expert testimony from Seth Parkoff, a radio frequency engineer; Alice Fahy-Elwood, a radiation protection specialist; and Janice Talley, a senior planner. Vincent J. Dotoli, Esquire, appeared representing himself and other objectors, all South Plainfield property owners within sight of the proposed tower. Several members of the local community that attended the meeting spoke against the proposal.

At the April 4, 1995 hearing, objectors' counsel completed the cross-examination of Ms. Talley. The objectors then presented their own witnesses, including Richard Wolf, a telecommunications consultant; and John T. Chadwick, a professional planner. Comcast's counsel cross-examined these witnesses.

Comcast presented two rebuttal witnesses at the May 7, 1995 hearing: David Stern, Comcast's director of wireless systems engineering; and Roger F. Grutzmacher, a partner in the firm of JGH Architects. At the Conclusion of the May 2, 1995 hearing, the Board denied Comcast's use variance application by a unanimous vote of 7-0. The Board's findings were memorialized in a written resolution of the same date.

On June 4, 1995, Comcast filed a complaint in lieu of prerogative writs challenging the use variance denial. The action was tried on September 29, 1995 and May 24, 1996. On the later date, the Law Division Judge rendered his oral opinion and overturned the denial of the variances and ordered approval of Comcast's application. The Board and objectors appeal.

The M-3 zone is the least restrictive use zone in South Plainfield. The zoning ordinance provides as follows with respect to the uses permitted in the M-3 Zone:

A. All uses permitted in the M-1 Zone.

B. The manufacture, fusing and production of quartz and of silica and quartz products; the manufacture of electrical instruments and electrical components; the manufacture and production of all types of precious and base metals and alloys in ingot form, refining, melting, casting and working of precious and base metals and alloys; manufacture and production of precious base and alloy metal products, including processing, milling, machine fabrication and assembling; manufacture and production of non-hydrocarbon chemical and catalyst products, plating compounds and solutions, diamonds and other precious stone products, brazing fluxes, light metal parts, liquid gold and other precious and base metal organic based paints, casting compounds and cements, gas measuring equipment and gas generating and storage equipment.

C. Warehouse and distribution center, including sales at retail of a "clearance" nature, provided however that such sales activities occur not more frequently than one every quarter for a period, in each case, of not more than seven (7) consecutive days duration.

D. Lumber yards.

E. Residential uses are expressly prohibited.

(South Plainfield Zoning Ordinance, sec. 710.1 (1992)).

The uses permitted in the M-1 Zone are:

A. Office buildings for executive, administrative, business, educational or professional purposes.

B. Scientific or research laboratories devoted to research, design and/or experimentation; process and fabricating incidental thereto may be permitted.

C. Uses of a light manufacturing nature as follows:

(1) Manufacturing of light machinery comprising any of the following: carburetors, and small machine parts; cash registers; sewing machines; and typewriters, calculators and other office machines.

(2) Fabrication of metal products comprising any of the following: baby carriages, bicycles and other non-motorized vehicles; metal furniture; musical instruments; sheet metal products; and toys.

(3) Fabrication of paper products comprising any of the following: bags, bookbinding; boxes and packaging materials; office supplies; and toys.

(4) Fabrication of wood products comprising any of the following: boats, boxes, cabinets and wood workings; furniture and toys.

(5) Food and associated industries comprising any of the following: bakeries; bottling of food and beverages; food and cereal mixing and milling; food processing; food sundry manufacturing; and ice cream manufacturing.

(6) Other permissible industry comprising any of the following: concrete and plastic products; electronic products; glass and glass products manufacturing; jewelry manufacturing, including polishing; leather goods manufacturing, except curing, tanning and finishing of hides; motion picture exchange, pharmaceutical products manufacturing.

D. Residential uses are expressly prohibited.

(Ibid. at sec. 708.1).

The M-2 Industrial Zone includes as a permitted use "Television and Radio Studios and Antennas." (South Plainfield Zoning Ordinance, sec. 709.1C). This zone is located several hundred yards from Comcast's selected site, and is immediately adjacent to Route 287. Cellular communication towers are clearly not a permitted use in the M-3 Zone and, therefore, Comcast required a use variance. It also required a bulk ...

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