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Cell South of New Jersey, Inc. v. Zoning Board of Adjustment of West Windsor Township

May 14, 2002

CELL SOUTH OF NEW JERSEY, INC., D/B/A COMCAST COMMUNICATIONS, INC., PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF WEST WINDSOR TOWNSHIP, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized). Cell South of New Jersey d/b/a Comcast Communications, Inc. v. Zoning Board of Adjustment of

In this appeal, the Court considers West Windsor's denial of Comcast's application for a conditional use variance to replace a communication tower.

In 1995, the Zoning Board of Adjustment of the Township of West Windsor (the Board) approved Comcast's application to construct an 83-foot wireless communication tower (monopole or tower) on a 3.25-acre tract of land located on Alexander Road in West Windsor. The property is located in the ROM-2 zone, and industrial area zoned for research offices and light manufacturing uses. Communication towers are permitted in that zone as a conditional use so long as the towers are no taller than 55 feet. The closest residential dwelling is approximately 370 feet away.

In 1997, two years after the Board's approval and Comcast's construction of the 83-foot monopole, Comcast sought a variance to improve and expand coverage throughout the West Windsor area, and to permit Sprint Spectrum LP (Sprint), another wireless communications provider, to install its wireless communication antenna on the Comcast monopole. Comcast sought to accomplish these objectives by replacing the existing monopole with a 152-foot monopole.

In support of its application, Comcast presented the testimony of six experts at the hearing before the Board, who collectively testified that the existing monopole did not provide adequate service; that replacing the existing tower with a taller one would not affect surrounding areas in a negative way, would not adversely impact the aesthetics of the surrounding areas, and would not produce any noise, smoke, odors, heat, dust, glare, or traffic; and that the proposed tower would not alter the property values of surrounding residences or neighborhoods.

In addition to Comcast's experts, West Windsor's planning consultant testified that the new tower would not affect area traffic and that the installation of an antenna was an appropriate land use in the ROM-2 zone. The expert further offered his opinion that the community would benefit from the collocation of Sprint's antenna atop the proposed tower because it would reduce the total number of monopoles within the township.

Several residents testified at the hearing in opposition to Comcast's application, expressing concerns about the negative visual impact of the proposed tower and about its potential impact on property values. The residents did not offer any expert testimony concerning any alleged adverse effect on property values or on whether the proposed tower would impair the intent or purpose of the zoning plan or ordinance.

The Board denied Comcast's application, finding that Comcast had failed to satisfy the positive and negative criteria required for a variance. In 1999, the Law Division reversed the Board's denial of Comcast's application on the ground that the denial was arbitrary, capricious, and unreasonable. The court observed that Comcast's expert testimony was unrebutted and the there was no evidence to refute Comcast's claims that the existing tower did not adequately serve the West Windsor area. The court further found that the residents' testimony was insufficient to prove that Comcast had not met its burden in respect of the positive and negative criteria required for a variance. Thus, the court ordered that Comcast's application be granted.

The Appellate Division reversed, concluding that Comcast was unable to demonstrate that the property was particularly suited to a 152-foot monopole or that there were no alternative sites on which to place the proposed tower. The panel further found that notwithstanding that failure, the Board acted reasonably in denying the variance because granting the application would result in a substantial detriment to the public good. The panel also found that the record supported the Board's finding that the proposed tower would result in a substantial aesthetic detriment and that Comcast had not offered sufficient evidence regarding available methods to reduce the visual impact of the taller tower. Finally, the panel noted that the Board was under no obligation to accept the testimony of Comcast's experts even though that testimony was unchallenged.

The Supreme Court granted Comcast's petition for certification.

HELD: The Zoning Board of Adjustment of West Windsor Township's decision to deny Comcast's application for a conditional use variance to replace an existing 83-foot wireless communication tower with a 152-foot one is without foundation in the record and is thus set aside as arbitrary, capricious, and unreasonable.

1. A decision of a zoning board may be set aside only when it is arbitrary, capricious, or unreasonable. (p. 9)

2. Local authority to grant variances from zoning ordinances is governed NJSA 40:55D-70d, which requires a showing that the variance and use sought will promote the general welfare, that the variance can be granted without substantial detriment to the public good, and that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance. (pp. 9-11)

3. The standard for establishing the "positive" criteria is contingent on the type of variance at issue. In circumstances where the variance is required to allow a nonconforming conditional use, the applicant must demonstrate that the site remains suitable for the use notwithstanding any nonconformity. (pp. 11-12)

4. In respect of the "negative" criteria, a zoning board must consider whether the proposed conditional use variance will cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good and whether the conditional use variance is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district. (pp. 12-13)

5. The positive criteria requirement for a use variance is satisfied when the applicant can demonstrate that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use. However, where the applicant sees a conditional use variance, the focus is on the continued appropriateness of the proposed site (because that use is already permitted) and not whether the site is particularly suited for the proposed use. (p. 14)

6. The record developed by Comcast demonstrates that the proposed site continued to be an appropriate site for a cell tower and that the proposed tower would improve wireless service. Thus, Comcast satisfied the positive criteria. The record also established that Comcast satisfied the negative criteria for a conditional use variance. (pp. 14-18)

7. Although a zoning board may reject expert testimony, proof of an adverse effect on adjacent properties and on the municipal land use plan generally will require qualified expert testimony. (pp. 17-18)

8. By affording undue weight to the residents' unsubstantiated testimony, the Board disregarded the weight of the evidence in the record in determining to deny Comcast its variance, and the record is devoid of any persuasive evidence to support the denial. Thus, the Board's decision must be set aside as arbitrary, capricious, and unreasonable. (pp. 19-20)

9. The substantial evidence standard used to examine claims under the Telecommunications Act of 1996 (TCA) is analogous to the arbitrary, capricious, and unreasonable standard of review traditionally afforded to decisions of zoning boards under the Municipal Land Use Law. Given that equivalency of review, the Board's decision violated the TCA because it was not predicated on substantial evidence. The Court does not address Comcast's contention that the Board's decision prohibited or had the effect of prohibiting the availability of personal wireless services in the West Windsor area. (pp. 20-22)

10. The Court reaffirms its decision in Smart SMR of New York, Inc. v. Fair Lawn Board of Adjustment, 152 N.J. 309 (1998), and declines to find that wireless communication facilities are inherently beneficial uses, finding instead that the best course is one that maximizes the use of expert testimony and encourages the development of a substantial record to demonstrate both the positive and negative criteria. (pp. 22-24)

The judgment of the Appellate Division is REVERSED and the Law Division's decision is REINSTATED. Comcast's application for a ...


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