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Sprint Spectrum L.P. v. Zoning Board of Adjustment of the Township of Bedminster

April 3, 2008

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



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-1718-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 4, 2008

Before Judges Winkelstein, Yannotti and LeWinn.

Plaintiff, Sprint Spectrum, applied to the Bedminster Township Board of Adjustment to construct cell phone towers at two sites in the municipality, the Nervine site and the Holtaway site. The Board initially denied both applications. In a November 13, 2006 order, the court sustained the Board's denial of the Holtaway application but reversed the Board's decision as to the Nervine site and remanded to the Board for further consideration. Following the remand, the Board approved the application to construct a cell tower at the Nervine site, subject to its right to appeal from the court's reversal of its initial determination denying the Nervine application.

Consequently, the Board appeals from that portion of the order that reversed its denial of the Nervine application.

Plaintiff in turn challenges the court's order upholding the Board's denial of the Holtaway application. We conclude that the Board's arguments are without merit and affirm the November 13, 2006 order. Thus, counsel for Sprint has represented that

Sprint only desires to construct a single cell tower, on either of the two sites, and the Board ultimately approved the construction of a cell tower at the Nervine site, Sprint's appeal from the court's affirmance of the Board's denial of the Holtaway application is moot. Accordingly, we do not address the Board's or the court's findings as to the Holtaway site.

Plaintiff's application to construct a cell phone tower in Bedminster Township dates back to November 2001, when it proposed to build a tower at the Holtaway property, 1691 Route 206 in Bedminster. Wireless communications towers (cell towers) are conditional uses in all of the Township's zoning districts.

The Board held eight days of hearings on Sprint's application, from February through October 2002. Before the Board decided the application, in March 2003 plaintiff and Verizon Wireless filed an application for an alternate site, the Nervine site, located at 208 Hillside Avenue in Bedminster. The Board held fifteen hearings on that application, from July 2003 to April 8, 2005, when it denied the application. The Board then held five more hearings on the Holtaway application, from June through September 2005. On November 16, 2005, it denied the application.

The Nervine site is 5.8 wooded acres and contains a single residence. It is in a residential zone, which is deemed the least suitable location on the ordinance's priority schedule for locating cell towers. Directly behind the site is an existing twenty-two acre Green Acres tract. Sprint's proposal calls for a twelve-foot-wide gravel driveway within a twenty-foot easement area. The structure would be within a fifty-by-fifty-foot area and enclosed with a seven-foot fence. The tower would be a monopole with flush mounted antennas 150 feet high with a six-foot lightning rod on top. Thirty-five trees over eight inches in diameter would be cut down and an area less than one-half acre in size would be cleared.

There are four residences within 500 feet of the proposed tower, one of which is the Nervine residence. The other three are over 447 feet from the tower; no part of the proposed tower would be seen from any of those residences. Although the top of the tower could be seen from residences more than 500 feet from the tower, it would not be visible at ground level from any residence.

The Nervine site may avoid the need for a future site for a tower, "other than a site north in Peapack." The Holtaway site would require two additional tower sites. The Nervine site also permits greater co-location than the Holtaway site. Variances would be needed for the height of the pole, setback of the property line, setback to nearest residences, and for the size of the compound.

Plaintiff's expert testified about service gaps that would be covered by this proposed facility, including a gap in Verizon's service. Plaintiff and Verizon jointly submitted a revised plan to allow for coverage of both gaps by this tower. The site would meet all federal and state standards for radiofrequency emissions.

The Board determined that a gap exists in cellular service that can only be covered by erecting a cell tower in excess of seventy feet. No alternative sites would allow co-location with an existing tower, nor are any buildings high enough to eliminate the gap. While the search ring included twenty potential sites for a tower, only the Holtaway and ...


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