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

June 30, 1999

NEW BRUNSWICK CELLULAR TELEPHONE COMPANY, D/B/A COMCAST CELLULAR ONE, PLAINTIFF-APPELLANT,
v.
BOROUGH OF SOUTH PLAINFIELD BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND TED DABROWSKI, KAZ DABROWSKI, KARL KOLAR, SALLY KOLAR, VINCENT J. DOTOLI AND LOUISA DOTOLI, INTERVENORS-RESPONDENTS.



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

Argued May 3, 1999

On appeal from the Superior Court, Appellate Division, whose opinions are reported at 305 N.J. Super. 151 (1997) and 314 N.J. Super. 102 (1998).

The issue in this appeal is whether respondent, Borough of South Plainfield Board of Adjustment (the Board) arbitrarily, capriciously and unreasonably denied the request of appellant, New Brunswick Cellular Telephone Co., d/b/a Comcast Cellular Communications (Comcast), for use and bulk variances to construct a monopole for cellular communications. More specifically, the issue is whether the Board erroneously concluded that Comcast had not satisfied the "positive" and "negative" criteria entitling it to a use variance under N.J.S.A. 40:55D-70(d). Finding that the Board had erred, the Law Division directed approval of both variances. The Appellate Division reversed. 314 N.J. Super. 102, 104 (1998). Because of a Dissent in the Appellate Division, Comcast appealed as of right. We reverse and reinstate the judgment of the Law Division.

I.

This appeal arises from the continuing tension between the expanding public demand for wireless communication and the concern of local government about the location of cell towers and monopoles. A brief summary of the law pertaining to use variances will place the appeal in perspective.

At the time of the Board's hearings, the governing statute, N.J.S.A. 40:55D-70d stated:

"In particular cases for special reasons, (a board of adjustment may) grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure, (2) an expansion of a nonconforming use, (3) deviation from a specification or standard . . . pertaining solely to a conditional use, (4) an increase in the permitted floor area ratio . . . , (5) an increase in the permitted density . . . , except as applied to the required lot area for a lot or lots for detached one or two dwelling unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision or (6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. . . ."

"No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

On June 30, 1997 the legislature amended the second paragraph of subsection d to read:

"No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."

The first paragraph in subsection d refers to the "positive criteria" and the second paragraph "the negative criteria" necessary for the grant of a use variance. Generally speaking, "to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Smart SMR of New York, Inc. v. Fair Lawn Board of Adjustment, 152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)); see also William M. Cox, New Jersey Zoning and Land Use Administration § 7-5.2 (1999). Further, "[t]o satisfy the negative criteria, in addition to proving that the variance can be granted 'without substantial detriment to the public good,' an applicant must demonstrate through an 'enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'" Smart, supra, 152 N.J. at 323 (quoting Medici, supra, 107 N.J. at 21-22); see also Cox, supra, at § 8-2. An inherently beneficial use presumptively satisfies the positive criteria, and eliminates the need to satisfy the negative criteria by an enhanced quality of proof. Smart, supra, 152 N.J. at 323. Grant of a use variance for an inherently beneficial use "depends on balancing the positive and negative criteria." Id. at 324.

In Smart, we refrained from declaring towers and monopoles to be inherently beneficial uses. Id. at 329. Instead, we recognized that they serve the general welfare "and thereby satisf[y] the positive criteria if the use is particularly suited for the proposed site." Id. at 332. That qualified recognition left telecommunications carriers with the obligation to satisfy the negative criteria. The carriers also must prove that, when balancing the proof on the positive and negative criteria, the grant of the variance would not cause substantial detriment to the public good. Ibid.

Until the issuance of our opinion in Smart, the Law Division and the Appellate Division had considered towers and monopoles to be inherently beneficial uses. Id. at 328 (listing cases). Here, Comcast proceeded before the Board on the assumption that its monopole was such a use. Although the Board also assumed that the monopole was an inherently beneficial use, it denied the requested use variance.

The Board concluded that Comcast had failed to meet its burden of proving that the monopole would not pose a substantial detriment to the public good, the zone plan, and the zoning ordinance. Additionally, the Board found that the site was inappropriate for a monopole and that the monopole did not provide a public benefit. The Board concluded that the minimal benefit from the proposed monopole did not outweigh the public detriment it imposed. *fn1

Both the Law Division and the Appellate Division also assumed that the monopole was an inherently beneficial use. The Law Division, however, reversed the Board's decision, concluding that the record did not establish that the monopole would be detrimental to the public good. Finding that substantial evidence in the record supported the Board's Conclusions, the Appellate Division reversed the judgment of the Law Division. 305 N.J. Super. 151, 170-71 (1997). The court accepted the Board's Conclusions that Comcast should have used an existing tower, that increased use of digital service would eliminate the need for the monopole, and that the grant of the variance would substantially impair the development of the zone. Ibid.

Judge D'Annunzio Dissented. Id. at 171. He concluded that the monopole was inherently useful, that its negative effect was minimal, and that the pole's usefulness outweighed its minimal negative effect. Id. at 174-75. For the Dissent, the "proposed location of the monopole in the Borough's most permissive industrial zone [was] the most important fact in this case." Id. at ...


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