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Sprint Spectrum, L.P. v. Zoning Board of Adjustment of the Borough of Leonia

May 28, 2003

SPRINT SPECTRUM, L.P., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF LEONIA, DEFENDANT-APPELLANT/ CROSS-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, BER-L-4344-01.

Before Judges Skillman, Lefelt and Winkelstein.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 9, 2003

In this opinion we examine the reasonableness of a zoning board's denial of a telecommunications carrier's use variance request. Plaintiff Sprint Spectrum, L.P., applied to the Borough of Leonia Board of Adjustment (Board) for a variance to affix nine small antennas to the roof of an existing five-story apartment building located in a residential zone. The Board found that the introduction of the telecommunications equipment was contrary to the Borough's master plan and zoning plan and, accordingly, denied the application. The Law Division reversed, granting Sprint use, height and rear yard variances. The Board has appealed.*fn1 Because the proposed telecommunications facilities will serve the general welfare, its benefits to the public will outweigh its potential detriments, and locating the equipment in a residential zone will not substantially impair the intent and purpose of the zone plan or ordinance, we affirm the Law Division.

I.

Sprint is licensed by the Federal Communications Commission (FCC) to provide wireless telecommunications services known as personal communication services (PCS). It has applied for use, height and rear yard variances*fn2 to construct telecommunications facilities on the roof of a building at 222 Christie Street in Leonia. The property is an irregularly-shaped lot located on the corner of Christie Street and Broad Avenue, and improved with a five-story residential apartment building. The lot is located partially within the A-4 Single Family Residential zoning district, and partially within the B Multiple Family Residential zoning district.

Sprint seeks to install nine wireless antennas, along with an equipment platform, cabinet modules, cell equipment and fans, on the apartment building roof. The antennas are approximately 48 inches long, 8 inches wide, and 2.5 inches thick.

Single-family residences are located west of and directly across Broad Avenue from the property. To the north, 500 to 1100 feet from the property, lies the business zoning district. South of the multiple-family zoning district along Broad Avenue are single-family zoning districts.

The apartment building is set back twenty-five feet from Broad Avenue, and approximately ten feet from Christie Street. The application requires a use variance because telecommunications equipment is not permitted in any zone in the municipality.*fn3 Although the maximum height permitted in either the A-4 or B zone is 35 feet, the existing building rises approximately 60 feet above grade; installation of the antennas will not extend beyond the height of the parapets on the roof.

A rear yard setback variance is necessary because three of the antennas would be set back 7.6 feet from the property line, while the zoning district requires a 35-foot setback.

II.

The Board held four hearings between October 2000 and March 2001. Sprint presented the testimony of Anthony Suppa, a licensed professional engineer; Francisco Paradas, a radio frequency engineer; Jeffrey Stiles, a professional planner; and Ronald Peterson, an expert in the field of radio frequency safety. The Board retained its own expert, Ross Sorci, an electrical and computer engineer. Because the experts' testimony is critical to whether Sprint proved its entitlement to a use variance, we will set forth the experts' testimony in some detail.

Suppa testified that because the antennas provide for line of-sight communications, they need to be highly elevated. As a consequence, one of the reasons this site was selected is because the ground elevation of the building is 120 feet, making the top of the parapets approximately 175 feet above grade. The proposed antennas would rise no higher than the parapets and a dumbwaiter that is already located on the roof.

All antennas would be camouflaged or shielded. Three antennas, in the northwest corner of the building, would be flush-mounted on the stairwell wall and painted to match. They would not be visible from the street, nor would they extend higher than the top of the wall. Three additional antennas, located on the northeast side of the building, would be flush mounted to the front of the building, and would not exceed the height of the building. They would be painted to match the existing brick. A 26 by 9 foot equipment platform and three antennas would be placed on the roof, surrounded by an 8-foot-high screen. Those three antennas would be painted to match the color of the screen and would be 7.6 feet from the edge of the building, violating the setback limitations. The equipment would not, however, be visible from the street. The antennas would be clamped to the steel bottom of the platforms.

Sprint also proposed placing five equipment cabinets, which look like"small refrigerators," on the roof, each approximately 5 feet high, and 2½ by 2 feet in width and depth. The facilities would not be manned. They would be visited approximately once every four weeks by a technician, and would also be monitored seven days per week, twenty-four hours per day by computer.

The roof can support the weight of the telecommunications equipment, which could withstand 125 mile-per-hour winds. All of the equipment would have an alarm tied to the Sprint network, so if tampered with, Sprint would know immediately and dispatch a technician. The telecommunications equipment would not contain any hazardous material.

Paradas, a Sprint PCS employee, testified as an expert radio frequency engineer. He explained that because radio waves extend out horizontally and then descend, coverage is affected by the surrounding topography and by the height of the antennas. He testified that although Sprint has three sites in the surrounding areas, in Englewood, Fort Lee, Palisades Park, and a proposed site in Teaneck, Leonia experiences a gap in reliable coverage.

Paradas said that when looking for a site,"the first thing we look for is existing structures, like existing towers. And then second, rooftops." He testified that Sprint had considered other locations, but they were insufficient to fill the gap in coverage. Yet, he also acknowledged that Sprint concentrated on the subject location which was located in the center of the gap, and provides the needed coverage. He added that due to the ground elevations of the surrounding terrain, use of other locations may not correct the gap in coverage. If the antennas were located north or south of the site, higher antennas would be needed because the site elevation would not be as high as the Christie Street property. He said using two separate antennas in other locations would be insufficient to fill the gap in coverage.

Based on data obtained while driving through the coverage area, a computer produced a map showing the gaps in coverage. Alluding to the map, Paradas explained that the existing Sprint sites did not afford cell phone users full coverage in the Borough; meaning that in Leonia the calls were"going to drop" or the cell phone was"not going to be able to accept calls." He also testified that the radio frequency used by the equipment would not interfere with any other electronic devices, and the facility would be tied to 911 service which would allow emergency personnel to accurately locate cell phone users in that area.

Sprint's professional planner, Jeffrey Stiles, discussed the suitability of the site for the telecommunications equipment. He said the license issued by Sprint requires it to provide reliable seamless coverage throughout its entire licensed area. Accordingly, the site, which has a higher elevation than the surrounding area, fits within a network of other nearby sites to provide the appropriate overlap in coverage. He acknowledged that the proposed site was located entirely in a residential zone, but opined that the commercially-zoned areas in Leonia were unsuitable for the equipment because they were located downhill from the site and could not provide the necessary height to fill the coverage gap, and consequently, no nearby sites in nonresidential neighborhoods were suitable for the antennas. He said placing an antenna in the commercial district might partially ameliorate the coverage problem, but some areas would remain without coverage.

He testified that the telecommunications equipment constituted an inherently beneficial use, with the licensing by the FCC satisfying the positive criteria. As for the negative criteria, he noted that the radio frequency emissions would fall well below FCC regulations, and the equipment would be barely visible to the public. The equipment meets all building codes and requires no municipal services; it is unmanned and generates no noise, light, noxious fumes, or traffic. He considered the facilities to be a benign use.

Stiles considered the visual effect of the telecommunications equipment on the neighborhood to be insignificant. He said moving the equipment to another location would require a more visible antenna. If the antennas were not placed on the subject site, the only alternative would be to build a new structure, either a very high monopole or tower. He also claimed that tree poles, which are ground poles with"fake tree limbs affixed" to hide the antennas, which usually rise ...


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