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Omnipoint Communications, Inc. v. Town of Harrison Zoning Board of Adjustment

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 11, 2007

OMNIPOINT COMMUNICATIONS, INC., PLAINTIFF-RESPONDENT,
v.
TOWN OF HARRISON ZONING BOARD OF ADJUSTMENT, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5967-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 17, 2007

Before Judges Kestin and Lihotz.

The Zoning Board of Adjustment of the Town of Harrison (Board) appeals from a Law Division judgment entered in a proceeding in lieu of prerogative writs. The trial court reversed the Board's October 19, 2005 resolution denying the site plan application submitted by plaintiff Omnipoint Communications, Inc., to install a wireless telephone communication facility, consisting of six antennas and three equipment cabinets, to be erected within the NC-Neighborhood Commercial zone, atop an existing four-story structure. The purpose of the facility is to transmit and receive radio signals for wireless telephone communications, filling gaps in the existing cellular coverage. The proposed function was not a permitted use in the NC-Neighborhood Commercial zone; cellular communication antennas are a conditionally permitted use in the Town's CC and I zones.

The trial court also granted plaintiff's request, without remand, for a use "D" variance, height variance, rear-yard setback "C" variance, site plan approval, and certain waivers of a site plan in connection with its proposed unmanned cellular communication facility. Judge O'Shaugnessy expressed the reasons for his decision in an eleven-page written opinion dated May 11, 2006. The judge determined that the Board's denial of the application was counter to the unassailable record established by plaintiff and the overwhelming evidence in favor of the proposed installation, making the Board's determination arbitrary, capricious, and unreasonable.

On appeal, the Board cites error in the trial court's: failure to remand due to inadequate notices regarding a parking variance and an incomplete application (issues raised for the first time on appeal); grant of relief which exceeded its authority; and an incorrect finding that plaintiff adequately discharged its burden to establish the positive criteria required by N.J.S.A. 40:55D-70d(1). We disagree and determine the arguments presented are lacking in sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E)

After reviewing the record in the light of the written and oral arguments advanced by the parties and the prevailing standards of law, giving due consideration to Judge O'Shaugnessy's factual findings and conclusions, we are in substantial agreement with his determinations of law.

Accordingly we affirm.

20070711

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