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Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjustment

January 26, 1998


The opinion of the court was delivered by: Pollock, J.

Argued October 7, 1997

On certification to the Superior Court, Appellate Division.

At issue is whether respondent, Smart SMR of New York, Inc., d/b/a Nextel Communications (Smart), is entitled to a use variance under N.J.S.A. 40:55D-70(d)("subsection d" or "use variance") to erect a 140-foot telecommunications "monopole" in an industrial zone in the Borough of Fair Lawn. The Fair Lawn Board of Adjustment (the Board) denied Smart's application for a use variance, and the Law Division affirmed. In an unreported opinion, the Appellate Division reversed. We granted the Board's petition for certification, 148 N.J. 460 (1997), and now affirm the judgment of the Appellate Division as modified.


Beneath the surface of this appeal stretches the tension between the need for telecommunications in an increasingly technological society and local land use control of sites for mobile communications facilities. In today's world, prompt and reliable information is essential to the public welfare. Evidencing the need for such information is the proliferation of wireless communications instruments such as mobile phones, which rely on antennas for the transmission of signals. For successful transmission, the antennas often are placed on tall structures such as buildings, towers, or, as here, monopoles. Towers and monopoles, which may reach several hundred feet in height, sometimes exceed height restrictions set by municipal land use ordinances. Consequently, telecommunications carriers may need relief from those ordinances to construct needed towers or monopoles. Ultimately, the selection of a site for a mobile communications facility and the need to erect a tower or monopole may depend on both local considerations and the design of the telecommunications network.

In the present case, Smart's interest in constructing a mobile communications facility with a monopole in Fair Lawn conflicts with the Board's interest in controlling the size and location of the monopole. Resolution of the conflict summons an appreciation of the rights of municipalities to regulate the use of land within their boundaries, the rights of carriers to construct and use essential telecommunications facilities, and the public interest in both reasonable land use regulations and a reliable telecommunications network.

Guiding us in resolving the conflict are federal and state statutes as well as judicial decisions. The statutes include the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136; the New Jersey Radiation Protection Act (Radiation Act), N.J.S.A. 26:2D-1 to -23.4, and the Telecommunications Act of 1996 (Telecommunications Act), Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 15 U.S.C.A., 18 U.S.C.A., and 47 U.S.C.A.).


Our analysis begins with Congressional legislation addressing the relative rights of local land use agencies and telecommunications carriers. Congress has authorized the Federal Communications Commission (FCC) to license carriers to provide wireless telecommunications services. 47 U.S.C.A. § 301 (West 1997). Pursuant to that authorization, the FCC has licensed Smart to install an "enhanced specialized mobile radio" (ESMR) system in six metropolitan areas, including the New York metropolitan area, an interstate area that includes New Jersey. The ESMR system is a digital telecommunications system that provides services similar to those of cellular telephone systems.

According to Smart, its digital ESMR system is an improvement on cellular telephone systems. The ESMR system provides clearer signals, enhanced protection against eavesdropping, as well as paging and dispatch services. Smart anticipates that trucking companies, livery services, as well as police, fire, and emergency medical services will use its dispatch, data, and paging services. Although the Board did not so find, Smart anticipates that the general public also will use its services.

The uncontradicted testimony before the Board establishes that Smart needs a mobile communications facility in Fair Lawn to operate its ESMR system. Such a system depends on multiple, low-power mobile communications facilities to provide service both to local communities and to mobile users passing through those communities. The proposed facility will require construction of a 140-foot "monopole" (ESMR monopole) for antennas used in transmitting and receiving ESMR signals. The ESMR monopole would be narrow, only three-feet wide at the base and less than two-feet wide at the top. Twelve panel antennas measuring 18" x 25" would be arranged in a triangular support, with four antennas on each face.

Smart seeks to locate the facility and monopole on a two and one-half acre site on Rosalie Street in the I-2 industrial zone (Fair Lawn site). Commercial or industrial uses bound the Fair Lawn site on three sides, and single family residences abut the remaining side. Permitted uses in the I-2 zone include manufacturing, and warehousing, as well as hospital and public utility services. Already on the Fair Lawn site are a warehouse and a parking and loading area. With the exception of public utility structures, no structure in the I-2 zone may exceed 40 feet in height.

Also located in the vicinity of the Fair Lawn site is a 90-foot monopole, which is used to provide cellular telephone service. The owner of that monopole is a partnership consisting of NYNEX Mobile communications, Bell Atlantic Mobile Systems, and Empire Cellular (NYNEX).

Before Smart submitted its application, the Fair Lawn Planning Board had decided that NYNEX was a public utility. That decision exempted NYNEX's monopole from height restrictions. Originally, Smart requested the Board to declare it to be a public utility, so its monopole would likewise be exempt from height restrictions. The Board, however, denied Smart's request. Similarly, the Appellate Division denied Smart's request to be treated as a public utility. We denied Smart's cross-petition for certification on that issue. 148 N.J. 460 (1997). Consequently, the issue whether Smart should be considered a public utility is not before us. But see New Brunswick Cellular Tel. Co. v. Zoning Bd. of Adjustment, No. L-00620-96, 1997 WL 800355 (N.J. Super. Ct. Law Div. Dec. 2, 1997) (reversing denial of conditional use variance for monopole when Board of Adjustment recognized telecommunications carrier as public utility).

Because the Board denied Smart the status of a public utility, Smart sought a use variance. From August 1993 to June 1994, the Board conducted ten hearings on Smart's use variance application. In support of its application, Smart introduced several expert witnesses. Smart's "zoning specialist," Julie Mills, explained that Smart chose to locate the mobile communications facility in Fair Lawn because radio-frequency-engineering studies indicated that a Fair Lawn site was necessary for the operation of Smart's ESMR system. Mills further explained that Smart selected the Fair Lawn site only after first considering and rejecting other site locations.

A radio frequency engineer, Benny Ghahramany, testified that the Fair Lawn site, which is located in the center of several other communications sites, is a "high priority site" for Smart's ESMR system. Failure to construct a mobile communications facility on the high priority site not only would deprive local residents of the use of Smart's ESMR system, but also would hinder inter-site communications. Inter-site communication is necessary to enable Smart to "hand off" a mobile user's telephone call to other sites as the user passes through the area. Ghahramany further explained that 140 feet is the minimum monopole height necessary to operate a mobile communications facility on the Fair Lawn site.

A land use planner, Carl Linbloom, testified that Smart's proposed use constituted an "inherently beneficial use," as defined in Sica v. Board of Adjustment, 127 N.J. 152 (1992). Linbloom asserted that the FCC's grant to Smart of a license to construct and operate an ESMR system demonstrated the public need for the service. He submitted a Memorandum Opinion and Order dated March 14, 1991, in which the FCC stated:

The Communications Act directs us to "[s]tudy new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more efficient use of radio in the public interest." Certainly, Fleet Call's [Smart's parent corporation] proposal falls squarely within the spirit of our statutory mandate.

According to Linbloom, the proposed use would provide the public with a digital alternative to cellular telephones. Linbloom noted that "typical users may include emergency services, police, fire, first aid and so forth, school buses, other bus manufacturers and trucking companies." He further concluded that the Fair Lawn site is particularly suited for the proposed use and was essential for Smart's ESMR system to be fully operational. The site, which is situated in a general industrial zone, is compatible with the permitted uses in that zone. Finally, Linbloom testified that the ESMR monopole would produce no noise, vibrations, smoke, dust, odors, heat, or glare. Thus, the ESMR monopole would not impose a significant impact on the environment. Because the ESMR monopole required only periodic maintenance, it would not affect motor vehicle traffic. Linbloom concluded that the monopole's only negative aspect, its height, did not outweigh the benefits it conferred.

An electrical engineer, Louis G. Cornacchi, testified for Smart regarding electromagnetic field (EMF) radiation emissions. Cornacchi discussed the combined level of EMF radiation that the Smart and NYNEX antennas would emit. He posited a "worst case" scenario, in which he assumed Smart would operate all of its channels at maximum power for twenty-four hours a day. Based on that assumption, the nearest residential homes, some 400 feet from the area, would receive 2000 to 2500 times less EMF radiation than permitted under New Jersey law and 400 times less EMF radiation than permitted under the laws of those states with the strictest standards. According to Cornacchi, Smart's antennas would operate at only twenty to twenty-five percent of the levels used in his analysis. Thus, he concluded that the proposed use would emit EMF radiation levels beneath levels considered safe for human beings.

In response to the Board's concerns about long-term health effects, Smart introduced the testimony of Dr. Thomas Ely, a radiation safety expert. Dr. Ely testified that EMF radiation emissions from the ESMR monopole would fall far below safety levels set by the American National Standards Institute and the National Council on Radiation Protection. Residents would receive greater exposure to EMF radiation through one second of exposure to sunlight than through twenty-four hours of exposure to EMF radiation emitted from the ESMR monopole.

Smart's last witness was Robert Vance, a certified general real-estate appraiser, certified tax assessor, and licensed real estate broker in the State of New Jersey. Vance testified that construction of the ESMR monopole would not produce an adverse impact on real property values in Fair Lawn. In reaching that Conclusion, Vance reviewed Smart's variance application, the site plan, Fair Lawn's zoning ordinances, and neighborhood sales data. He performed an on-site inspection of the Fair Lawn site and the surrounding neighborhood. He also talked with the Fair Lawn tax assessor as well as other brokers and appraisers. Lastly, Vance reviewed a property-value study he had conducted in Warren Township, New Jersey, after a television station constructed a 396 -foot communications tower in a residential neighborhood. In that study, Vance found that, despite its size and location, the tower had no impact on the real property values of the surrounding residential area.

Finally, in response to inquiries from the Board, Smart advised the Board that NYNEX and Smart were willing to co-locate their communication antennas on one 140-foot monopole. Smart proposed to tear-down NYNEX's existing 90-foot monopole and construct a new 140-foot monopole adjacent to the existing monopole's location. Thus, the number and location of monopoles in the area would remain unchanged.

Several Fair Lawn residents objected to Smart's application. Some residents feared that exposure to the proposed use's EMF radiation emissions would have a deleterious effect on their health. Others were displeased with the esthetics of a 140-foot tower. Still others were concerned that construction of the ESMR monopole would lower property values.

Angie Licasale, a licensed real estate agent, testified for the objectors that the ESMR monopole would cause an adverse effect on real property values. Licasale acknowledged, however, that she was not an appraiser, that she had never sold a house near a radio tower, that she had no personal experience with whether a radio tower affected real property values, and that she had not reviewed Smart's variance application. Nor had she reviewed any testimony in the matter nor seen any pictures of the Fair Lawn site. Lastly, she conceded that she had only a general knowledge of the Fair Lawn site.

Additionally, Dr. Elaine Winchell, chairperson of the Fair Lawn Environmental Commission, testified on behalf of area residents. Dr. Winchell informed the Board that the Environmental Commission recommended the Board deny the variance on esthetic grounds.

On June 6, 1994, the Board denied Smart's application for a use variance. The Board found that the proposed use is not inherently beneficial because it "is a commercial venture for commercial users, bringing with it no improvement in the quality of life of the residents of the Borough of Fair Lawn but bringing with it the possibility that it can be used for illegal business transactions." The Board further found that no special reasons existed for granting the use variance and that the "the proposed site is particularly inappropriate for the proposed monopole" because "the proposed use is on a narrow strip of industrially zoned property which abuts a residential area . . . and . . . the applicant failed to explore other sites which would be potentially appropriate for its use and would be within the area for the applicant to meet its technical . . . requirements." Finally, the Board concluded that the "use variance cannot be granted without substantial detriment to the public good and . . . would substantially impair the intent and the purpose of the zone plan and ordinance." To support its Conclusion, the Board found that the monopole was esthetically displeasing to Fair Lawn residents. It also found that neighboring residents perceived that exposure to "signals being sent to and from [the] applicant's equipment on the monopole" would subject them to "illness over the long term." The residents also perceived that their property values would be diminished "by the aesthetically displeasing monopole and by future purchasers failing to bid on their homes due to the long term possibility of illness." On August 12, 1994, Smart filed an action in lieu of prerogative writs, challenging the Board's decision. The Law Division affirmed that decision and dismissed Smart's complaint, holding that construction of the monopole constituted a commercial use, not an inherently beneficial use. In an unreported opinion, the Appellate Division reversed, finding that the Board's decision was arbitrary, capricious, and unreasonable.

The Appellate Division concluded that the proposed monopole satisfied the positive criteria for obtaining a use variance. The court found that the monopole was both an inherently beneficial use and was particularly suited for the Fair Lawn site. In reaching the latter Conclusion, it found that the site was a central location, that the I-2 zone's permitted uses were compatible with the monopole, and that the monopole ...

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