September 4, 2007
JOHN STREVENS, PLAINTIFF-APPELLANT,
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HOWELL; NEXTEL OF NEW YORK, INC.; AND THE HOWELL TOWNSHIP FIRST AID SQUAD, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1000-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 28, 2007
Before Judges Payne and Messano.
Plaintiff John Strevens owns residential property designated as Block 78.10, Lot 34.02, in the Township of Howell (Howell). Adjacent to plaintiff's property is Block 78.10, Lot 33, owned by defendant, Howell Township First Aid Squad (First Aid Squad), and located in an HD-1 zone pursuant to Howell's zoning ordinance. Defendant Nextel of New York, Inc. (Nextel) is an FCC-licensed provider of wireless communications in the Howell area, and, together with the First Aid Squad, it submitted a joint application for development to defendant Zoning Board of Adjustment of the Township of Howell (the Board).
The application sought a use variance, bulk variances, and preliminary and final site plan approvals with waivers to construct an unmanned wireless telephone facility on the First Aid Squad's property. Nextel intended to remove a lattice-work antenna presently atop the First Aid Squad's building and install twelve antennas on a 150-foot tall monopole tower. Nextel also requested permission to construct a twelve-by-twenty foot structure to house their equipment within a fenced compound on the property. Although Howell's zoning ordinance permitted telecommunication facilities as a conditional use in the HD-1 zone, the application did not meet several of the conditions contained in the ordinance and, thus, required a variance pursuant to N.J.S.A. 40:55D-70d(3).
In particular, the application sought the following variances from the conditional use restrictions contained in the ordinance: 1) for the "fall zone" of the monopole, which was required to be 150 feet from any residential lot line, including plaintiff's, and was only 89 feet; 2) for the equipment shed which slightly exceeded both the maximum square footage and height permitted by the ordinance; 3) for the height of the monopole, 150 feet, as opposed to the permitted 49.2 feet; and 4) for the setback of the pole from plaintiff's property which was 150 feet as opposed to the required 300 feet. Additionally, Nextel requested that the Board waive the production of required plans, such as a storm water management designs and parking designs, because of the limited nature of the development. The Board took testimony over two sessions and, on December 12, 2005, unanimously approved the joint application.
In a memorializing resolution, dated January 23, 2006, the Board concluded that Nextel "met the burden of proof required for the granting of a conditional use variance . . . ." The Board found the "physical and locational characteristics of th[e] site [were] particularly suited to the proposed use," and that the "location and installation . . . at the proposed height is necessary in order to fill a coverage and capacity gap in this area." The Board further determined that the "impact on the surrounding neighborhood is not substantial, given the limited visibility [of the tower] from the roadway," and that the "proposed use [could] safely co-exist with the present uses already  on the site."
Because the First Aid Squad was going to relocate its own communications equipment to the new tower, the Board found that "[t]he public interest is further served" because "emergency communications in the area" would be enhanced. The Board noted that Nextel's investigation of other sites had been "diligent," but that none of the alternatives "appropriately filled the coverage requirement as effectively" as the First Aid Squad site.
Lastly, the Board concluded that "there [was] no substantial detriment to the public good," by the grant of the application. Because the use was a permitted conditional use in the zone, the Board determined there was "no substantial impact on the Zoning Plan or Ordinance," and that any deviations from the conditional use standards contained in the ordinance "d[id] not rise to a substantial level."
Plaintiff filed a complaint in lieu of prerogative writs challenging the Board's decision as arbitrary, capricious and unreasonable. In his September 25, 2006, written decision, the trial judge reviewed the evidence in the record in light of the Supreme Court's decision in Coventry Square v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994). He concluded the Nextel had produced "competent, credible and reasonable expert testimony" before the Board "which was unrefuted" by plaintiff. He further determined that the Board had properly applied the Coventry Square standards to the evidence and, therefore, did not act unreasonably by approving the application and granting the variances and waivers. The trial judge's October 10, 2006, order denied plaintiff's challenge to the Board's action and this appeal ensued.
Before us, plaintiff argues that the Board "failed to follow the dictates of the zoning ordinance in considering the conditional use," and that it made findings that were "not justified by the record" before the Board. The defendants counter by arguing the Board's findings were all amply supported by the evidence adduced at the hearings and that the Board's decision resulted from an appropriate consideration of that evidence in light of the Coventry Square standards.
After careful consideration of these contentions, we affirm substantially for the reasons set forth by Judge Alexander D. Lehrer in his comprehensive and thoughtful decision. We are convinced that plaintiff's appeal lacks sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E). We simply note the following.
Plaintiff contends the Board failed to apply the ordinance's requirement that Nextel demonstrate its facility could not be collocated on an existing tower. Specifically, Howell's ordinance provided that "[n]o new tower shall be permitted unless the applicant demonstrates . . . that there is no existing tower or structure available that can accommodate the applicant's antenna via collocation." Plaintiff also contends that the Board's findings were not supported by the evidence Nextel produced at the hearings.
While Nextel admitted that its first choice of location was the municipal fire department site where a tower already existed, contrary to plaintiff's assertions, there was extensive testimony adduced before the Board regarding size constraints at the fire department site and the inability of Nextel and the property owner of the site to come to some agreement. We find no basis to overturn the Board's conclusion that Nextel had complied with the requirements of the ordinance regarding collocation of its facility.
With regard to plaintiff's argument that the Board's findings were not supported by the evidence, it suffices to say that plaintiff's real objection is to the conclusions the Board drew from the evidence, not the lack of evidence. For example, plaintiff takes exception to the Board's conclusion that the First Aid Squad property was "particularly suited for the proposed use," and argues there was no basis for such a conclusion. However, it is clear that there was substantial testimony before the Board that indicated the placement of the tower at this location would fill in coverage gaps in Nextel's service in the area as required by its FCC license. In sum, we find no basis to conclude the Board lacked sufficient evidence to reach its conclusions.
© 1992-2007 VersusLaw Inc.