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New York SMSA v. Board of Adjustment of Township of Weehawken

June 29, 2004

NEW YORK SMSA, LIMITED PARTNERSHIP D/B/A/ VERIZON WIRELESS, PLAINTIFF-RESPONDENT,
v.
BOARD OF ADJUSTMENT OF TOWNSHIP OF WEEHAWKEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-2554-02.

Before Judges King, Lintner and Lisa.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 19, 2004

Defendant, Zoning Board of Adjustment of the Township of Weehawken (Board), appeals from the reversal of its denial of a use variance for the construction of a wireless communications facility. Plaintiff, New York SMSA Limited Partnership (Verizon), proposed to install antennas on the roof of a residential apartment building and place telecommunications equipment in the building's basement. In rejecting Verizon's application, the Board concluded that the proposal did not satisfy the positive or negative criteria for the grant of a use variance. In the Law Division action in lieu of prerogative writ, Judge Curran reversed, finding that the Board's memorializing resolution was palpably deficient and its actions clearly arbitrary, capricious and unreasonable.

On appeal, the Board contends that Verizon failed to establish a special reason for the grant of a use variance because it did not prove that there is a"significant gap" in service in the Township. In asserting this argument, the Board confuses claims based on the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, with claims based on the Federal Telecommunications Act of 1996 (TCA), 47 U.S.C.A. § 332(c)(7) (2004). Verizon does not contend that the Board's action violated the TCA by effectively prohibiting the provision of wireless services in the Township. Rather, it maintains that it was entitled to a use variance under the MLUL as applied in cases such as Smart SMR of N.Y., Inc. v. Bor. of Fair Lawn Bd. of Adjustment, 152 N.J. 309 (1998). The sole point at issue on this appeal is whether Verizon satisfied the positive criteria of N.J.S.A. 40:55D-70(d).

The record amply supports the Law Division judge's conclusion that the Board's action was arbitrary, capricious and unreasonable. The memorializing resolution sets forth no factual findings to support the Board's decision. Moreover, the record reveals no facts from which the Board could have reasonably concluded that Verizon failed to satisfy the requirements of N.J.S.A. 40:55D-70(d). We affirm for the reasons given by Judge Curran in her written opinion which we review below.

I.

On July 9, 2001 Verizon applied for a use variance and preliminary and final site plan approval to install a wireless communications facility at an apartment building located in Weehawken's B-1/B-2 High-Rise Multi-Family/Business Zone. The Board conducted public hearings on Verizon's application on January 22, February 12, and February 26, 2002. A motion to deny the application was passed by unanimous vote on February 26, 2002. A resolution memorializing the denial was then adopted.

On April 11, 2002 Verizon filed a complaint in lieu of prerogative writ in the Superior Court, Law Division, asking the judge to set aside the Board's action and declare that Verizon was entitled to approval of its application. Judge Curran heard oral argument on the matter on November 15, 2002 and issued a written opinion reversing the actions of the Board.

II.

Weehawken is an urban community located directly across the Hudson River from mid-town Manhattan. The Township lies in an area of heavy traffic congestion, in close proximity to the New Jersey Turnpike, I-495, and the Lincoln Tunnel. Verizon currently operates two wireless communications facilities in the Township: one on a commercial building in the waterfront district; the other on the Town Hall, which is near I-495.

Dominic Villecco, Verizon's radio frequency engineering expert, testified that the Township's location and topography create problems for wireless communications services. The northern portion of Weehawken sits on a ridge 160 feet above the river and is exposed to radio frequency signals coming from Manhattan to the east and the New Jersey Turnpike to the south and west. Cell phone users in this area have difficulty placing and maintaining calls because their cell phones detect signals from more than a dozen different sites. The over-abundance of signals creates interference that renders wireless communications services unreliable.

Villecco explained that in order to operate properly, cell phones must be able to identify a dominant server, i.e., a site with a signal significantly higher than other surrounding sites. In northern Weehawken, however, there is no dominant server. As he described the situation:"The crowd [of servers] is very large and the phone basically gets lost in the shuffle, lost in the noise." The only way to solve the problem is to construct a new cell site that would establish a dominant server in the area. However, the signal from such a server must be very focused. Otherwise, it would traverse the horizon and exacerbate signal interference problems in Manhattan.

Villecco presented a topographic map and transparent overlays to illustrate the coverage problem in the Township which we examined at oral argument. He explained that the overlay maps were based on computer propagation models developed by Motorola and used throughout the world. Referring to the overlay of existing coverage, he described the gap in reliable service as being roughly one-half mile long by one-quarter mile wide. He said that even though the area is fairly small, it has a high population density and heavy traffic congestion.

Villecco chose a five-story, residential apartment building at 117 Parkview Avenue as the ideal location for the new cell site. He proposed to place fifteen antennas, arranged in three sets of five, on the building's roof. All of the antennas would be narrowly focused to serve only the gap area. He explained that the height and location of the building allowed the site to provide extremely selective coverage. The site would solve the gap problem, yet keep excess signal off the horizon and out of Manhattan. He presented an overlay map of predicted coverage from the site, which we also examined, showing that the proposed facility would fill in service gaps in the northern section of Weehawken and part of Union City as well as along JFK Boulevard.

Villecco described the unique suitability of the proposed site:

So this site then, what it did for us is it gave us the ability to see all the problem areas that we have. It's not that high of a site so it doesn't put that much extra signal on the horizon and create more of the interference problem that we already have, which is really just a function of growth and evolution of the network. And it would give us the ability to point these very specific narrow beam antennas in the areas where they had problems so that we can keep the radio signal controlled but focused.

In responding to questions from the Board, Villecco explained that a municipally owned water tower in the Township's B-1 Shopping Center Business Zone would not be a suitable location for the new cell site. He said that the tower, which is 150-feet tall, is located on the western edge of the gap area. In order to provide coverage in the gap, it would be necessary to mount antennas high on the tower and face them directly east. At an elevation of 300 feet relative to Manhattan, the antennas would put excessive signals in the air and aggravate interference problems."What it would do there is it would create more of the same problem that we have and eventually we have to build an additional site just because it wouldn't solve our problems because it exacerbates interference." He also explained that mounting more antennas on the Town Hall would duplicate service along I-495 and not solve the coverage problem. He concluded that there was no other potential location that would solve the coverage problem as effectively as the proposed site.

Peter Longo, Verizon's site engineer, described the physical characteristics of the proposed site. A total of fifteen panel antennas, each four feet tall, sixteen inches wide, and twelve inches deep, would be mounted on the apartment building roof. Five antennas would be mounted on the southeastern corner of the building, extending to five feet above the parapet wall. A second set of five antennas would be similarly mounted on the northwestern corner of the building. A third set of antennas would be flush-mounted on the western corner, with no antennas extending above the parapet wall. At their maximum, the top of the antennas would be sixty-three feet above ground level. Verizon's electronic equipment would be housed in a room in the building's basement. Cables would run from the equipment room to the roof through a cable tray attached to the side of the building painted to match the facade.

Peter Tolischus testified on behalf of Verizon as a licensed professional planner. He observed that the Township Council adopted an ordinance on December 12, 2001 which prohibited cellular communications towers and limited the use of cellular communications antennas to the B-1 Shopping Center Business Zone and the SW Special Waterfront Zone. He explained that Verizon's application required a d(1)"use" variance because the proposed site is not located in a B-1 or SW zone.

Tolischus presented numerous photographic simulations of what the apartment building would look like with the antennas installed. We also examined these at oral argument. He said that the application met all of the positive criteria for the issuance of a"use" variance because the proposed site would enhance cellular communications and eliminate the need for construction of a tower. He also asserted that the proposal satisfies the negative criteria as well, stating that"based on... my visual analysis, I don't see there's any substantial visual impact from these antennas. They are quite visible from one particular viewpoint. But otherwise, they are obscured by telephone poles, traffic signs, vegetation, other vertical elements." He concluded that mounting antennas on the roof of an apartment building is not inconsistent with a residential use and pointed out that the building site is"sandwiched" ...


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