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New York Smsa Limited Partnership v. Board of Adjustment of Township of Bernards

August 03, 1999

NEW YORK SMSA LIMITED PARTNERSHIP, D/B/A/ BELL ATLANTIC NYNEX MOBILE, PLAINTIFF-RESPONDENT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF BERNARDS, SOMERSET COUNTY, NEW JERSEY, DEFENDANT-APPELLANT.



Judges Skillman, Levy and Lesemann.

The opinion of the court was delivered by: Lesemann, J.s.c. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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

This is one of an apparently proliferating number of cases dealing with cellular telephone towers and their interaction with municipal land use regulations. *fn1 Plaintiff New York SMSA Limited Partnership, d/b/a Bell Atlantic Nynex Mobile (SMSA), applied to the Board of Adjustment of the Township of Bernards in Somerset County, claiming that construction of such a tower on a particular parcel of land was a necessary part of the "seamless" network of telephone reception which it was creating for the users of its service. Following six hearing sessions, the Board adopted a twenty-three page resolution denying the variance.

On an appeal by SMSA, the Law Division reversed that determination and entered judgment granting the variance. However, it remanded the matter to the Board to consider "the imposition of reasonable conditions," presumably with a view toward mitigating whatever adverse effects might otherwise flow from the variance. The Board did impose certain conditions, and the matter was then returned to the Law Division which refused to set aside any of the conditions and also declined to modify its prior judgment. The Board then appealed to this court.

Applying the standards set out in Smart SMR of New York, Inc. v. Borough of Fair Lawn Board of Adjustment, 152 N.J. 309 (1998), *fn2 we conclude that the Board of Adjustment acted reasonably and consistent with the principles set out in Smart, that the Board's decision was based on substantial evidence in the record, and that the Law Division should not have overturned that determination. Accordingly, we reverse.

Plaintiff's request was to construct a 150 foot high telephone transmission tower (frequently referred to as a "monopole") to close what it described as a "gap" in its service. The gap includes a three mile portion of Interstate Route 78 and, according to plaintiff's experts, the gap would be eliminated by construction of the proposed monopole. Without that tower, however, telephone communication in the affected area would remain as it is now, with calls to and from automobiles either being adversely affected or sometimes completely terminated as they pass through the "dead" zone.

The nature of cellular telephone transmissions requires such towers at intermittent locations. A tower designed to service a particular area can accomplish that only if it is located within a prescribed radius from which its signals can reach all of the area. *fn3 Plaintiff claimed it investigated twenty-seven other sites which could theoretically have met its needs. Its representatives testified, however, that all of those sites either failed to meet technical requirements, or for some reason, were unavailable. Plaintiff thus settled on the site in question here, a ninety acre tract on which a residential school for emotionally disturbed adolescent boys (the Bonnie Brae School) is located. The site is in a P-1, Public Purpose Zone, which permits public or institutional uses such as hospitals, recreational facilities or educational facilities, but not commercial or industrial uses. The proposed transmitting tower is not a permissible use within that zone, nor would the height of the tower comply with the zoning ordinance's limiting schedule. In fact, 150 feet would exceed the height limitations for all zones in the municipality.

Plaintiff claimed that it needed the requested variance in order to fulfill its obligation to those using its services. It also claimed that the proposed tower would have no adverse effect on the municipality's zoning plan or on the surrounding area. It noted that the nearest residences (condominium units) were located 600 feet from the proposed tower in one direction and 1,300 feet in the other direction. To the north of the site is a park complex, a municipal pool and a Veterans' Administration Hospital. To the south is a twenty-two acre vacant parcel, also owned by the Bonnie Brae School, and farther to the south is a tract owned by the Township, much of it characterized by wetlands. To the east, the townhouse development, which is 1,300 feet from the site, includes 526 dwelling units between three and seven years old, ranging in value between $140,000 and $240,000. The development which lies 650 feet to the west consists of 812 units which sell for between $110,000 and $125,000 per unit. Between the proposed tower location and the residential complexes, however, there are no trees which could effectively screen the tower from the homes.

During the hearings before the Board, SMSA presented its technical experts to describe the present gap in its service coverage and the need for the proposed tower to fill that gap. On appeal, the Board contends that SMSA did not establish the claimed need because there was no testimony of specific complaints from plaintiff's customers to corroborate the inability to transmit or receive calls in the "dead" area. However, plaintiff presented more than ample technical evidence as to the existence of the gap, none of which was contradicted. The fact that users may not have registered complaints, or an inability to show how many customers suffered from such poor service, is not inconsistent with the uncontradicted evidence presented. The existence of the coverage gap and the desirability of filling it is clear.

The applicant's proof as to why it had to place its tower on this specific site, however, was less compelling. Although it did testify to the unavailability or unsuitability of twenty-seven sites it investigated, it did not demonstrate that there might not be other sites--available and suitable--which could meet its need and be less intrusive in the neighborhood in which it would be located.

Plaintiff also presented the testimony of a real estate expert who claimed the tower would have no adverse effect on the value of the abutting townhouse properties. He based that opinion on surveys he had performed in other areas, but he conceded that the properties he had previously studied were expensive, single-family dwellings and not lower-priced townhouses. He thought the latter would be less sensitive to the presence of the tower, but that Conclusion was not based on studies he had examined. He also referred to a number of other studies which varied in their Conclusions, but he found most credible one which indicated that residential units located 600 feet or more from transmission towers experienced no decline in market value from the towers.

A planning expert also testified for plaintiff. He said that the topography of the property--higher at the north end than at the south end--and its proximity to Route 78 made it well suited for the proposed use. He described the use as relatively benign, because of the absence of noise, traffic, odor or other such negative factors. He acknowledged, however, that the major detriment caused by monopoles is their visibility. He added that while vegetation could not be used on this property to screen the tower from the adjacent residential properties, that negative factor was offset somewhat by the distance between the tower and those properties.

He also noted that permitted uses within the P-1 zone included such uses as hospitals, schools, or lights on an athletic field, which could be built within seventy-five feet of the property line and would thus have--in his opinion--a more detrimental impact than the proposed monopole. He also acknowledged that the Township's master plan encouraged ...


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