Before Judges Petrella, Conley and Braithwaite.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Passaic County.
After the Law Division overturned the denial of a variance to Northeast Towers, Inc. (Northeast), the Zoning Board of Adjustment of the Borough of West Paterson (the Board) appealed. The Board had denied Northeast's variance application to construct a 95-foot lattice communications tower next to an existing home on property in a residential zone. A 97-foot monopole had existed illegally on the property for a number of years and was proposed to be replaced.
On its appeal the Board argues that the decision of the Law Division Judge was erroneous because the Board's decision was neither arbitrary, capricious nor unreasonable. The trial judge reversed the Board's denial of Northeast's variance application to replace an illegal communications tower in a residential zone with a higher tower to be placed closer to the residence. The Board further argues that its denial of a variance for the proposed tower did not violate the Telecommunications Act of 1996.*fn1
Northeast owned a three-quarter-acre property at 2 Oak Ridge Road on Garret Mountain in West Paterson in a Residential A Zone. The property contained a three-bedroom ranch house with a two-car garage. About twenty-five years ago a 97-foot high steel monopole communications tower had been erected in the middle of the backyard about forty or fifty feet from the residence. Under the zoning ordinance this was a non-permitted use and thus was illegal. The house was rented to tenants who had no relationship to the operation of the tower.
Northeast's President, George Stites, acquired the property in January 1993. Before that he managed it for four years for the previous owners. Stites's management of the property involved obtaining contracts to lease rights to place a broadcasting antenna on the tower by various individuals or entities who could transmit and receive signals at the site. Stites had about forty "tower accounts" for radio common carriers that put an antenna on the tower to transmit for the carriers' communications systems. The leases were long-term and involved several thousand dollars per year. According to the record, Stites had tower accounts in various locations. He had four companies with antennae on his West Paterson tower: Page Net of New York, Page Net of New Jersey, Tel-Air Communications (Tel-Air), and Message Center Beepers. Transmitters for each of the different companies were located inside a shed on the property. These companies were all in the business of offering paging communications for profit and rented an antenna connection to provide transmitting capabilities for "tens of thousands" of their accounts. Fees for the right to transmit from the tower were unregulated.
Stites and his wife were sole owners of Tel-Air, which owned nineteen other transmitting sites. In addition to the tower accounts, Tel-Air serviced 20,000 "paging accounts" for individuals with billings of approximately $10 to $15 per month.
In response to an inquiry by Stites to add additional antennae to the tower, West Paterson's code enforcement officer informed him on April 6, 1993, that the installation of radio antennae for the purpose of renting them to business entities in this district violated the borough's zoning ordinance. Accordingly, the code enforcement officer directed Stites to stop installing antennae and remove all antennae installed since he purchased the property. On June 9, 1993, the code enforcement officer denied a permit to an electrical contractor who sought to install a sub-panel in the shed to increase the electrical service for the tower's antennae. The reason for the denial was that the tower violated Section 22.5.1 of the borough's ordinance, operating a business in a residential zone. The code enforcement officer, as a result of these inquiries, investigated whether the tower was an approved use in the zone and sought the municipal attorney's opinion. After concluding that the use was impermissible, the mayor and council were notified. Other properties with operating antennae for business were notified to stop doing business immediately.
Northeast applied for a use variance in November 1993, indicating that the first antenna was added in 1989 and the "last activity" on the site was October 30, 1994. The variance application sought (1) permission to allow replacement of the current tower with a 95-foot tower on a base elevation 10 feet higher than the existing tower's; (2) allowance of expansion of a nonconforming use; (3) setback and side yard variances; and (4) relief from height restrictions in a residential zone. There had been no prior application for a use variance or for construction of the shed and the electrical services.
Plaintiff argued that the communications tower was an inherently beneficial use. The residential use of the property was to be continued, and maintenance of the tower would not require the presence of employees or deliveries by commercial vehicles. The site would be serviced once a year under normal circumstances. Although the precise role and extent of the Federal Communications Commission's (FCC) regulation of the tower's function are not clear from the record, Stites indicated that a common carrier had exclusive territory granted by the FCC on the particular frequency allotted to the carrier. He also indicated that paging companies establish a pattern of site locations to cover with their transmissions so that coverage would be complete and no pages would be lost. He stated that moving his location might require two or three other locations to cover the same pattern and that FCC permission would be needed to move an antenna, a "station license." He indicated the new tower would have the potential to support cellular communications, but he did not presently have the opportunity to use the tower for that purpose.
The record indicates that there were at least three communication towers within a tenth of a mile from the Oak Ridge tower. Stites had not inquired as to whether he could place Tel-Air's antennae and transmitters on those towers.
Northeast's structural engineering expert reviewed design plans, including the structural integrity of the proposed tower. Because soil borings had not yet been taken, he was not clear as to the design of the concrete pad for anchoring and how the tower was to be anchored to the ground. The new tower was designed to hold fifty-two antennae which could weigh from 900 to 4,000 pounds. A real estate appraiser testified on Northeast's case before the Board and described the area surrounding the tower as "a fully developed residential neighborhood" with twenty-five or thirty-five-year-old, well-maintained homes on one-third to one acre sites. The area was said to be a stable community with a good reputation for preserving property values and containing some of the largest zoning in the municipality. The appraiser testified that based on his studies there "seems to be no effect on the value of surrounding properties when a tower is properly erected on a given lot." In his view there would be no negative impact on the value of the subject property, surrounding properties or the neighborhood, but this included the premise that the buyer of the subject property would have the option of removing the tower or using it. The appraiser conceded that except for Fair Lawn, other towers reviewed were much more distant from the nearest homes.
Northeast also had a planner testify as an expert in planning and land use impact with respect to communications facilities. He described Garret Mountain as the first major topographical change between the Palisades and Parsippany. The height was a significant factor with respect to "line of sight technology" and signals had to be seen by facilities sending or receiving that signal. He described the facilities as acting like an umbrella to cover a certain radius. He considered the situation "unique" because "a lot of these facilities are already there"; the "existing monopole is situated on the property"; and "these antennas and radio equipment which are necessitated to be here are an integral component of the overall communications system for the pagers and the other wireless facilities" that the owner leases to. He also considered the tower a "quasi-public nature" use because it was FCC regulated, although it is not regulated by New Jersey as a public utility. He acknowledged that the FCC did not regulate the number of users or antennae permitted on the tower or the fees generated. According to him, there were other antennae on the roofs of homes in the area and one nearby structure had two free-standing, three-legged towers. However, he was unaware of whether those facilities were for commercial or private use. He expressed the opinion that "stimulation of commerce benefits the public welfare and good of all the residents of New Jersey," although he acknowledged that the zoning statutes contain no such criteria. Also, he suggested that the use of pagers by medical professionals was an inherently beneficial use and a special reason to permit the facility. Negative impacts were said to be limited to esthetic or visual. The facility would not impact traffic, noise considerations and air quality.
This witness also indicated that removal of these facilities would probably mean that certain pagers would not work effectively in the area. He acknowledged that the new tower would be for Northeast's financial gain and assumed that other suitable sites for the network existed in the area.
There was also testimony from an expert regarding radio wave transmission environmental safety. A geotechnical engineer testified as to the ability of soil and rock to support the tower. A member of the public stated that he halted his own plans for construction on his property when he learned of the tower project because he did not intend to live right under a telecommunications tower.
In denying Northeast's application by a unanimous 7-0 vote, the Board made various findings in its resolution: The site was located in a Residential A Zone, and bordered by residences to the north and south and by a road to the rear; the proposed tower would be directly behind an existing garage, whereas the current tower was in the middle of the rear yard; the tower's elevation would be eight feet higher than the existing monopole tower which was an illegal use under the town's zoning ordinances and did not constitute a pre-existing nonconforming use. Northeast was a for-profit corporation engaged in a commercial business enterprise and unregulated by the government as to its rates, charges, uses or return on investment. The resolution noted that Northeast acquired title to the property in 1993 knowing that it was zoned for residential use; neither it nor its predecessor-in-title ever obtained any variances to use the property for commercial purposes, place transmitters or receivers or erect a monopole antenna, and had not acquired the right to maintain and mix commercial and residential use for the property and buildings. The property was noted to be the subject of a violation notice and Northeast was aware when it acquired the property that it lacked necessary approvals and was in violation of zoning ordinances. Moreover, Northeast was "not a single user service," but was "in ...