On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-345-99.
Before Judges Baime and Wallace, Jr.
The opinion of the court was delivered by: Wallace, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: December 20, 2000
Plaintiff Omnipoint Communications, Inc. appeals from the denial of its application for a conditional-use variance to construct a monopole for wireless telecommunications services by defendant Board of Adjustment of the Township of Bedminster (Board). Plaintiff filed an action in lieu of prerogative writs in the Law Division. The trial judge upheld the action of the Board and dismissed plaintiff's complaint.
On appeal, plaintiff contends (1) the Board failed to follow the requirements for granting a conditional use variance pursuant to N.J.S.A. 40:55D-70(d)(3); (2) the Board's decision was arbitrary, capricious, and unreasonable; (3) the trial court erred in requiring plaintiff to demonstrate through an enhanced burden of proof that the variance was not inconsistent with the zoning plan and in relying on the grounds for the variance request to support the denial; and (4) the denial of its application violated the Telecommunications Act of 1996. We affirm in part and remand for further hearing.
In February 1998, Bedminster adopted an ordinance aimed at regulating the location of wireless communications structures within the township. The ordinance sought to meet the mandate of the Telecommunications Act of 1996, and at the same time, limit the proliferation of wireless telecommunications towers. The ordinance made wireless communications towers "a conditional use within all zone districts of this Township."*fn1
In addition, the ordinance provides that wireless communications antennas placed on existing structures shall be a permitted use in all non-residential zone districts and a conditional use in all residential districts. Subsection 13-522.3 sets forth "Visual Compatibility Requirements," including specifications relating to fencing height, location, and square feet of areas dedicated to support equipment, and that the tower:
shall be located, designed and screened to blend with the existing natural or built surroundings so as to minimize visual impacts through the use of color and camouflaging, architectural treatment, landscaping, and other available means, considering the need to be compatible with neighboring residences and the character of the community.
Subsection 13-522.4 establishes "Conditional Use Standards for the Location of Wireless Telecommunications Antennas or Towers," and requires an applicant seeking to construct an antenna in a residential zone or a stand-alone tower in any zone shall provide a sufficient showing as to [sic]:
1. present documentary evidence regarding the need for wireless telecommunications antennas at the proposed location. This information shall identify the wireless network layout and coverage areas to demonstrate the need for new equipment at a specific location within the Township.
2. provide documentary evidence that a good faith attempt has been made to locate the antennas on existing buildings or structures within the applicant's search area. Efforts to secure such locations shall be documented through correspondence by or between the wireless telecommunications' provider and the property owner of the existing buildings or structures.
3. document the locations of all existing communications towers within the applicant's search area and provide competent testimony by a radio frequency engineer regarding the suitability of potential locations in light of the design of the wireless telecommunications network. Where a suitable location on an existing tower is found to exist but an applicant is unable to secure an agreement to collocate its equipment on such tower, the applicant shall provide sufficient and credible written evidence of its attempt or attempts to collocate.
4. demonstrate efforts to site new wireless antennas, equipment or towers within the applicant's search area according to the priority schedule below. Such demonstration, shall include the block and lot of any parcel for which the wireless provider has attempted to secure a lease or purchase agreement and copies of all correspondence by or between the wireless provider and the property owner.
In addition, Subsection 13-522.4 includes a priority schedule ranked from one to twelve according to the zone, type of equipment (antenna or tower), location of the equipment, and whether the configuration constitutes a permitted or conditional use. For example, "collocating" an antenna in a commercial/transportation zone is a permitted use with a priority of one; construction of a tower in a commercial zone is a conditional use with a priority ranking in tenth place; construction of a tower in a residential non-scenic transportation corridor, which includes lots with frontage on Routes 202, 206, I-287 or I-78, is a conditional use ranked in eleventh place; construction of a tower in a residential zone is a conditional use ranked in twelfth, or last, place.
The ordinance also establishes minimum setback requirements that towers must be 500 feet from any existing residence, and 2,640 feet from another wireless communications tower. It provides that the tower must be set back from the property line in compliance with the zone district setback or the tower height, whichever is greater, and the equipment compound must be set back in accordance with the zone district setback requirements for an accessory structure. The maximum permissible height of a tower designed to accommodate a single vendor is 100 feet. Subsection 13-522.5(h) provides, however, that a tower "shall be designed and constructed so as to accommodate at least two (2) antenna arrays of separate telecommunications providers."
On March 18, 1998, plaintiff filed an application with the Board for a "c2" variance and conditional use approval for construction of a 70-foot-high communications tower on property located at 1691 Route 206 in Bedminster. The pole would be located 18 feet from the property line in the OP zone. The OP zone was an office and professional commercial district along a transportation corridor. The zone setback requirement was 50 feet from the property line, but the 70-foot height of the tower required a 70- foot setback.
At the hearing before the Board, plaintiff clarified that it was seeking a "d3" use variance because although the tower was a conditional use in the zone in which it would be situated, its construction required relief from the 70-foot setback requirement and from the requirement that the tower be located 500 feet from a residence. There were ten single-family residences located within 500 feet of the proposed location. The closest residences were at a distance of 190 feet across Route 206; two residences were 310 feet; two at approximately 370 feet; one at 440 feet; and two at approximately 475 feet from the proposed tower. Five of those residences, however, were located in the OP zone. Plaintiff also sought a waiver from the fencing requirement based on the existence of vegetation. The front of the lot, where the tower would be located, was zoned OP, and the rear western portion was zoned as R-2, low density residential. The OP zone was intended as a non-retail transitional area between the village center and residential areas to the north. The OP zone had a minimum lot size of one acre. The proposed three-and-a-half-acre site contained a 3500-square-foot office building with a parking lot for sixteen cars. The pole would be located immediately adjacent to the parking lot and existing vegetation along Route 206. The pole would be a "stealth" structure, designed to look like a light pole, rather than an antenna support structure. Plaintiff submitted a report by Bell Labs stating that the proposed facility complied with applicable FCC regulations and posed no health risk to the immediately surrounding environment.
In support of its application, plaintiff presented the following witnesses, Christopher Olson, a radio frequency engineer employed as a consultant; William Moglino, an architectural expert; Robert O'Connor, a site consultant; and William Masters, a licensed professional planner.
Olson explained that plaintiff held a "personal communications services" or "PCS" license. He explained that PCS signals offered no interference with telephone, television or radio signals and operated at higher frequencies than cellular technology. The higher frequencies were less able than radio frequencies to travel around obstacles such as hills and trees and operated on a line-of- site basis. Olson acknowledged that implementation of plaintiff's network eventually required a relay or tower every mile and a half along New Jersey's major arteries. Plaintiff anticipated needing no additional sites in Bedminster, however, because the large western area of town that had no coverage was less populated.
Olson explained that a site adjacent to Route 287 had been recently approved for Bell Atlantic, but it failed to meet plaintiff's requirements because plaintiff had no plans to boost its own coverage along Route 287, and the Bell Atlantic site left a coverage gap for plaintiff's services of one-half to three- quarters of a mile. Olson said plaintiff's engineers and site acquisition group had examined the "202/206 corridor" but were unable to find existing structures that could provide the necessary coverage.
Moglino explained that plaintiff's tower would consist of a 70-foot-high unipole, designed to look like a light pole, with options for color and decorative ornamentation and the addition of a parking lot-type light. The light would illuminate the existing adjacent parking area. The tower would emit 62 decibels of noise, similar to the sound of a refrigerator and would be placed in front of the property near the highway. At 70 feet the structure would be above tree height, which was necessary. It was necessary for the unipole to be above the 50 to 60 foot high trees in order to operate properly. Moglino believed the pole at its proposed height could only handle one carrier.
O'Connor testified that he researched the town's ordinances and then drove around the town and consulted the tax maps and zoning maps attempting to find suitable locations in the order of the town's priority schedule. He located the property in the OP zone along the highway that had the highest elevation with trees that provided additional screening. Mr. Haltaway, the owner of the property, agreed to lease the site to plaintiff.
O'Connor was of the opinion that the higher elevation and presence of trees made the Haltaway property the most appropriate and least obtrusive location. When asked about "the next best choice," O'Connor replied that "the Haltaway. . . property, that was the best choice." He believed no other location had a ground elevation that would permit construction of a pole under the 100- foot-maximum height of the ordinance, but proffered no evidence of any other locations that he had examined. The particular location on the property and the unipole design were chosen in accordance with Haltaway's wishes.
Masters testified that the location and design complied with the ordinance's requirements for stealth designs, visual compatibility, and the size of the tower, and its accompanying equipment compound. The site was particularly suitable because it was centrally located within plaintiff's search ring where it was "needed to rectify a deficient service area." In addition, the site was near "major traffic arteries which are strong generators of wireless telecommunications service." He explained that the unipole would neither significantly impact the environment nor substantially conflict with surrounding land uses. Masters opined that the pole would satisfy the positive criteria for granting a use variance.
As to negative criteria, Masters posited that the public interest at stake was "significant" and the provision of state-of- the-art wireless telecommunications was a use that benefitted the region and the public at large. Furthermore, the detrimental effect from granting the variance, which Masters identified as primarily visual, would be minimized because the proposed pole was 30 feet shorter than the permissible height, and the stealth design, coupled with the existing vegetation, would render the visual impact "aesthetically inconsequential." Masters acknowledged, however, that the only benefactors would be plaintiff's subscribers.
Plaintiff had no written report documenting its efforts to locate sites that would comply with the ordinance's requirements. Masters explained that the FCC required plaintiff to provide "seamless coverage," which might require construction of the facilities in residential as well as non-residential zones.
Many nearby residents objected to plaintiff's application for aesthetic reasons and the potential impact on property values. They expressed concern about the precedent that would be set by granting the variance based on the fact that the pole's location failed to comply with the 500-foot distance requirement. They complained that granting the variance would nullify the ordinance's protection for residents and effectively subject the entire town to the possibility of having a tower constructed nearby because future applicants could claim they were being discriminated against if their applications were denied.
One resident expressed concern about the pole's limitations in that it was capable of servicing only plaintiff's subscribers and transmitting only for a short distance, thus requiring construction of numerous poles to provide the service. Furthermore, he observed that the technology created the potential that each licensee would be requesting the right to build a pole. Another resident suggested other ...