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Ocean County Cellular Telephone Co. v. Township of Lakewood Board of Adjustment

June 03, 2002

OCEAN COUNTY CELLULAR TELEPHONE COMPANY D/B/A COMCAST CELLULAR ONE, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF LAKEWOOD BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket Number L-4002-99PW.

Before Judges Havey, Braithwaite and Weissbard.

The opinion of the court was delivered by: Havey, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically April 25, 2002

Once again we are called upon to decide whether a zoning board's denial of a special reasons variance application made by a telecommunications provider is sustainable under New Jersey's land use principles. Plaintiff Ocean County Cellular Telephone Company, d/b/a Comcast Cellular One (Comcast), seeks to erect twelve antennae on an existing multi-story building in Lakewood, Ocean County. According to its written resolution, the Board denied Comcast's application because of: (1) the "detrimental visual impact" the antennae will have; (2) the public's "fear and apprehensions" about radio frequency (RF) emissions; and (3) the existence of other suitable locations for the proposed facility. The trial court upheld the denial. It concluded that the Board was not arbitrary or unreasonable in determining that other suitable sites were available, and in finding that citizen concern about RF emissions, "although unfounded according to government standards was nonetheless real." We reverse. We conclude that, based on the uncontradicted evidence submitted by Comcast, it satisfied both the positive and negative criteria under N.J.S.A. 40:55D-70d necessary to obtain a special reasons variance.

I.

Comcast is licensed by the Federal Communications Commission (FCC) to provide cellular telephone coverage in New Jersey, including Lakewood Township. It operates existing facilities in Lakewood and surrounding areas. However, because it was experiencing inadequate service capability for its customers, it applied for a variance pursuant to N.J.S.A. 40:55D-70d, a height variance, and site plan approval for the installation of a cellular telephone facility on the top of the Beth Medrash Govoah Dormitory (BMG building) in downtown Lakewood. The BMG building is located in the residential, office-professional zone (ROP), or hotel district, which has among its principle uses professional offices, churches and other houses of worship, and residential dwellings. Comcast seeks to erect twelve antennae on top of the forty-five foot high BMG building and to construct an equipment shed on its roof. The antennae would be installed on the building's elevator penthouse and, upon installation, would extend approximately seven feet above the penthouse roof. The antennae are forty-eight inches high, six to eight inches wide, and approximately six inches deep.

The BMG building serves as a residence for 1,000 rabbinical students, as well as a school facility attended by approximately 400 children and two synagogues.

During the Board hearing, Comcast presented the testimony of a radio frequency engineer, a design engineer, a professional planner, and two experts in the field of health risks associated with exposure to RF emissions. Jason Young, Comcast's radio frequency engineer, introduced various exhibits and testified in detail about the existence of a substantial "gap" in service in the Lakewood area due to an inordinate number of calls made from the BMG Building. He explained Comcast's current operating network, including facilities in the Jackson and Brick Township areas, and concluded that in order to alleviate the problem in Lakewood, Comcast needed to erect a new facility near the coverage problem area that would be capable of "downloading or helping with the capacity problems" that Comcast is now experiencing.

William Dieal, the design engineer, described the physical characteristics of the proposed antennae. Doctors Marvin Ziskin, a Professor of Biomedical Physics, and Robert Foster, a Ph.D in physics and a professional engineer, defined state and FCC standards concerning RF emissions and concluded that the emissions from the proposed facility would be substantially lower than both FCC and state accepted levels. James Miller, a professional planner, gave detailed testimony concerning the particular suitability of the site in question for the proposed facility. Specifically, he stated that the facility was compatible with existing uses in the area and uses permitted in the ROP zone. Building on Young's testimony, Miller testified that the proposed facility needed to be in the center of Comcast's search area in order to provide optimum capacity, and noted that the nearest industrial zone was well beyond Comcast's search area. Miller also engaged in the balancing test articulated in Sica v. Wall Bd. of Adjustment, 127 N.J. 152, 165-66 (1992), and concluded that the positive aspects of the proposed use outweighed any detrimental impact that may ensue from the grant of the variance.

No expert was presented by any interested party or by the Board. Various members of the public expressed a distrust of FCC standards and voiced concerns about exposing young children to the potential effects of RF emissions. Similarly, Board members stated that they had a "gut feeling" about the danger to the "thousand children" residing in the BMG building. One simply stated, "I am afraid of the site." Another observed that the proposal should be "away from any inhabited area."

As noted, the Board adopted a formal resolution denying the application for the following reasons: (1) the detrimental visual impact from the antennae; (2) the fear and apprehensions that the RF emissions would cause to parents of the school children and neighbors; and (3) the presence of other locations in the area that would be better suited for the requested use. The resolution added:

[T]he Board FINDS, CONCLUDES AND DETERMINES that the potential detriment to the public by approving the proposed use, and the general trepidation of parents and immediate neighbors outweigh any benefit to the public in approving the use. There are other sites which are more particularly suited to the use.

II.

The land use principles applicable in this case are now well settled. Judicial review of a zoning board's decision is ordinarily limited. The decision is deemed "'presumptively valid, and is reversible only if arbitrary, capricious, and unreasonable.'" Smart SMR of New York, Inc. v. Bor. of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998) (quoting Sica, supra, 127 N.J. at 166-67). The issue for the reviewing court is whether the board's decision is "supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Smart, supra, 152 N.J. at 327.

In order to obtain a variance under N.J.S.A. 40:55D-70d, an applicant must prove both the so-called positive and negative criteria. The positive criteria require that "special reasons" for granting the variance be established. Sica, supra, 127 N.J. at 156. The negative criteria require proof that the variance can be granted "without substantial detriment to the public good" and that it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70d.

If a proposed use is inherently beneficial, the positive criteria are presumptively satisfied. Smart, supra, 152 N.J. at 323. This is so because such uses, by their very nature, serve the general welfare. See Medici v. BPR Co., 107 N.J. 1, 12-13 (1987) (and cases cited therein). In Smart, supra, 152 N.J. at 333, the Court came close, but fell short of, declaring that telecommunications facilities are inherently beneficial uses. *fn1 Recently, the Court declined to revisit this issue and modify Smart's holding that such facilities are not inherently beneficial uses. Cell South of New Jersey v. West Windsor Zoning Bd. of Adjustment, __ N.J. __ (2002) (slip op. at 25-26).

However, the Court in Smart held that an FCC license generally establishes that the use promotes the general welfare. Smart, supra, 152 N.J. at 336. Nevertheless, the applicant must demonstrate that the proposed telecommunications facility is particularly suited for the proposed site, that is, the need for the proposed use at the particular location chosen by it. Id. at 332. See also Medici, supra, 107 N.J. at 4; Kohl v. Mayor & Council of Fairlawn, 50 N.J. 268, 279 (1967); New Brunswick Cellular Tel. Co. v. So. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999).

Resolution of the "particularly suited" issue necessarily implicates special considerations when the proposed use is a telecommunications system. It is one thing for a zoning board to deny an expansion of a nonconforming dairy on the basis that there was no showing by the applicant that the municipality and surrounding area were dependent upon the expansion to provide adequate milk supply. See Kohl, supra, 50 N.J. at 280. It is another matter when the board denies a variance application for a telecommunications facility by concluding that the capacity or coverage of existing systems is adequate to service the area without the additional facility proposed by the provider. It seems clear that the siting and design aspects of a telecommunications proposal often involve technical considerations not implicated in other applications. Congress recognized this potential for local disruption of the nationwide telecommunications network by enacting the Telecommunications Act (TCA), 47 U.S.C.A. § 332 (West Supp. 1997) (hereinafter referred to as § 332).

The TCA was "intended to promote competition by limiting the ability of local authorities to regulate and control the expansion of telecommunications technologies." Omnipoint Communications Enterprises v. Newtown Tp., 219 F.3d 240, 242- 43 (3rd Cir.), cert. denied, 531 U.S. 985, 121 S.Ct. 441, 148 L.Ed.2d 446 (2000). Thus, state statutes and local ordinances are preempted under the Supremacy Clause of the United States Constitution if they are in conflict with the TCA. Town of Amherst v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 16 (1st Cir. 1999). Although the TCA expressly preserves local zoning authority over the placement, construction and modification of personal wireless service facilities, § 332(c)(7)(A), it places several substantive and procedural limitations on a local board's power to deny an application for a telecommunications facility. Two such provisions of the TCA are pertinent here. First, § 332(c)(7)(B)(i)(II) provides that local regulation "shall not prohibit or have the effect of prohibiting the provision of personal wireless services."

Second, § 332(c)(7)(B)(i)(II)(iii), provides that a local decision to deny a facility must be "supported by substantial evidence contained in a written record." In the context of this section, "the decision process itself is governed by applicable state and local zoning laws." Cellular Tel. Co. v. Zoning Bd. of Adjustment of Ho-Ho-Kus, 197 F.3d 64, 72 (3rd Cir. 1999). The Court in Smart observed that this section of the TCA parallels New Jersey law, which requires that an agency decision be supported by sufficient evidence in the record. Smart, supra, 152 N.J. at 326. Significantly, however, the "substantial evidence" standard, and the traditional deference given to local board findings, do not apply to ยง 332(c)(7)(B)(i)(II), the TCA's statutory bar ...


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