Before Judges Skillman, P.G. Levy and Lesemann.
The opinion of the court was delivered by: P.G. Levy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
The opinion of the court was delivered by
Defendant appeals from a judgment setting aside its denial of a variance for the construction of a cellular transmission tower or monopole in a residential zone. This case differs from the tower cases that have previously come before the court in that this municipality adopted a comprehensive ordinance specifically directed at communications towers. The Zoning Board of Adjustment denied the variance, largely because plaintiff never satisfactorily explained why it could not mount its antennae on one of several existing structures in the area. In the Law Division, the Judge held that the site was particularly suited to the proposed use and reversed the Board. We reverse that judgment on the ground that the Board reasonably exercised its discretion in denying the variance. Further, we hold that the denial of the variance does not violate the federal Telecommunications Act of 1996. *fn1
Plaintiff is the contract purchaser of a 4.25 acre wooded tract in Middletown Township, located at the eastern end of West Nut Swamp Road where it abuts the Garden State Parkway right-of-way. The site is zoned R-45, single-family residential, which requires a minimum lot size of one acre. The application was for a 125 foot high monopole housing nine antennae, along with an unmanned twelve-foot by thirty-foot building to shelter communications equipment, all surrounded by a fence. In this zone, height is limited to thirty-five feet and the proposed use is prohibited.
Cellular telephone communication towers are permitted conditional uses in non-residential zones under Ordinance 95-24-21, which the governing body approved on December 11, 1995. Among other things, that ordinance prohibits towers within 200 feet of a residential zone. In addition, applicants are required to submit a narrative statement explaining why construction of a tower at a chosen site is necessary for "the efficiency and effectiveness" of its service. An applicant must also explain why it could not use an existing tower or other structure. *fn2
Plaintiff claimed it experienced a gap in coverage for customers traveling along the Garden State Parkway between mile markers 109 and 114. This area of Monmouth County is characterized by rolling hills and valleys, and just south of mile marker 114 the terrain drops about 100 feet. Similarly, heading north along the Parkway from mile marker 109, the elevation again drops. The site is relatively low-lying, about 110 feet above sea level. By comparison, a tower utilized by plaintiff's chief competitor, Comcast, is located at mile marker 114, and is about 220 feet above sea level.
Plaintiff's professional planner testified that plaintiff met the positive criteria for a use variance because the tower was an inherently beneficial use. As to the negative criteria, the planner testified that because the monopole is to be built at a relatively low elevation and is surrounded by mature trees averaging sixty feet high, the impact on surrounding residences would be minimal. Plaintiff's expert real estate appraiser testified that the tower would not adversely affect the value of adjacent residential properties.
The principal issues at the hearing were plaintiff's need for a new tower and whether another site might suffice. Plaintiff relied on an in-house cellular engineer as its expert witness to explain the technical issues. His primary responsibility was to find sites to meet plaintiff's coverage needs. He explained that customers driving along the Garden State Parkway in the concerned area experience static and/or dropped calls above the two percent company standard. A signal level of -75 dBm is the minimum signal level acceptable to plaintiff, and when a signal level falls below -100 dBm, customers hear static on their cellular phones and sometimes lose the call altogether. He also testified that customers have complained to plaintiff about service in the area in question. However, an objecting neighbor testified that she tested her Bell Atlantic cellular phone along the portion of the Parkway in question, and experienced no poor service or dropped calls.
Plaintiff has existing towers at mile markers 109 and 116. Comcast has a tower at mile marker 114, about 3300 feet north of the proposed site. Plaintiff considered locating its antennae on the Comcast monopole, but concluded that that location would not meet its coverage needs for vehicles near mile marker 109. Another possible location was the Lucent building near the Comcast tower. The engineer tested the suitability of the Lucent building by placing a twelve-foot antenna atop the building, which was fifty feet above ground level and 220 feet above sea level, but he concluded that the signal would fail at approximately mile marker 113, primarily because of the elevation drop on the stretch of the Parkway that plaintiff was attempting to service. He conceded, however, that a seventy-five foot antenna atop the Lucent building would provide improved signal quality, although he was unable to predict the extent of static or the number of dropped calls if an antenna was built there.
Objectors questioned plaintiff's need for the tower at the location in question, and stated their belief that the tower would impair property values. One neighbor pointed out that plaintiff had not supplied the information required to complete an application for a variance. The objectors also suggested other possible locations not explored by plaintiff, including either of two water towers in the area. Another neighbor pointed out that recently a new tower was approved in the adjacent municipality of Holmdel. Plaintiff's engineer said that the Holmdel tower, if ultimately approved (apparently there was some litigation), might adequately handle cellular calls along the area of the Parkway in question.
In its resolution denying the application, the Board acknowledged it was bound by then existing case law classifying cellular towers as inherently beneficial uses. Nonetheless, it deemed plaintiff's testimony regarding the efficiency and effectiveness of plaintiff's current system "to be weak and equivocal," found that plaintiff's evidence "fell far short of proving that cellular telephone coverage in the area in question was so unsatisfactory that a new tower was actually needed," and concluded that the applicant had not satisfactorily explained why it could not locate on another tower, particularly the Comcast tower at mile marker 114 or atop the Lucent building. As to the negative criteria, the Board found that the proposed use would impair the intent and purpose of the zone plan and zoning ordinance, because allowing the construction of a tower in a residential zone would conflict with the intent of the 1995 ordinance to control the proliferation of communications towers within the municipality. Moreover, the Board rejected plaintiff's real estate testimony, and instead found "unequivocally that this tower located in a residential zone would have a deleterious and severely detrimental effect on not only the existing residential neighborhood, but ...