April 3, 2008
SPRINT SPECTRUM L.P., PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Nervine properties met site standards and had owners willing to cooperate with plaintiff.
After the Board denied both applications, plaintiff filed a complaint in lieu of prerogative writs challenging the Board's decisions. Judge Ashrafi issued an oral decision and written order on November 13, 2006, affirming the Board's denial of the Holtaway application, and reversing and remanding the Board's decision as to the Nervine application. In part, Judge Ashrafi gave the following reasons for reversing the Board's determination as to the Nervine site:
As to the negative criteria, the Board concluded that a "large amount of tree clearing and driveway construction" would be intrusive in the neighborhood. The Board found in its resolution that "35 trees more than 8 inches" in diameter would have to be cut down. . . . In total, "an area less than one-half acre in size" would have to be cleared. . . . The Board further stated that the driveway would be made of gravel, not paved, and would be twelve feet wide, but it did not say how long the driveway would be. . . . The amount of tree clearing did not require re-planting or remediation under Bedminster's tree-cutting ordinance. The tree clearing had no relevance to Sprint's showing of the positive criteria for a d(3) variance from conditions imposed on an otherwise permitted use because the tree clearing had nothing to do with the variances requested.
The Board also concluded that "the proposed site's proximity to a Green Acres site" would be intrusive in the neighborhood. . . . A variance is not needed, and one was not requested because of the proposed tower's proximity to a Green Acres site. The court is unaware of any provision in the Bedminster Code that prevents building structures near a Green Acres site. A variance was needed for deviating from the required setback from the property line. The issue for the Board under Coventry Square[, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285 (1994)] and Cell South [of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75 (2002)] should have been whether that variance caused the Nervine Property no longer to be suitable for a conditional use otherwise permitted under the Bedminster Code, namely, the location of an antenna tower. If the nature of the adjoining property from which the setback variance was requested is relevant, the Board must articulate what is relevant about it. The Board did not do so here.
In addition, the Board concluded that the tower's visibility to residences 800 feet away from the tower would "detract from the nature of that neighborhood." While this may be true, the request was for a variance from the requirement that no tower be built within 500 feet of a residence. Again, if there were no residences within 500 feet of the proposed tower on the Nervine Property, then no variance would be needed. The tower could have been built without any involvement by the Board, despite the fact that residences 800 feet away could see the tower. The Bedminster Code specifies 500 feet as the relevant distance; nothing in the Code prevents the building of towers that can be seen [farther] away than that distance. Thus, the fact that a tower can be seen from 800 feet away has limited relevance. The Board now concedes so much in its arguments before this court. The only relevance of the view from areas more than 500 feet away may be the additional height of the tower beyond the 120 feet permitted in the Code. The relevant question for the Board under Coventry Square and Cell South is whether the additional height of the tower above the permitted 120 feet causes such damage to the character of the neighboring properties, such as the ones on Deer Haven Road, so as to constitute a substantial detriment to the public good or the legislative decision of the Township governing body that such towers should be limited to 120 feet in height.
Finally, the Board concluded that the height of the tower and its proximity to residences within 500 feet, the deviations from the Code standards that did require variances, were of "such a magnitude that do not justify granting these applicants permission to construct a cell tower and equipment cabinet at this site." . . . Sprint argues that the Board denied variances simply because they were needed. See Sprint Spectrum[, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 394 (App. Div. 2003)]. The "magnitude" of the deviations does not seem as great here as in the Holtaway application reviewed in the Omnipoint [Commc'n, Inc. v. Bd. of Adjustment of Bedminster, 337 N.J. Super. 398 (App. Div.), certif. denied, 169 N.J. 607 (2001)] decision. The proposed tower on the Nervine Property would be within 500 feet of only three residences besides the Nervine's home, which . . . has little relevance because the property owner does not object. The closest of the other . . . residences is 447 feet from the tower. . . .
In reviewing whether an application satisfies the negative criteria, the Board may consider whether the variances requested "will cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good." Coventry Square[, supra, 138 N.J. at 299]. But in making that determination, the Board must keep in mind the conditions that the municipality's governing body has imposed on the conditional use, and those it has not imposed. If the governing body has not determined that proximity to a Green Acres site, visibility from distant properties, and clearing of less land than would require remediation are deviations from the conditions that make cell towers appropriate use of the land, then the Board cannot "legislate" such conditions. If those effects damage other properties in the neighborhood so as to constitute a substantial detriment to the public good, the Board must state why and then balance that detriment against the benefits of the cell tower in accordance with Sica v. Bd. of Adj[ustment of Wall, 127 N.J. 152, 165-66 (1992)]. The Board's Resolution here does not reflect such balancing and must also be set aside for that reason.
Following the court's remand, on March 14, 2007, subject to its right to continue its appeal, the Board approved the Nervine application. The Board found, in pertinent part:
The number of residences within 500 feet of the proposed tower does not render the site unsuitable for the proposed construction of a cellular tower and equipment cabinet.
The deviation in height of the proposed tower from the permitted 140 feet to 150 feet with a monopole and flush mounted antennae is not of a significant magnitude from the standard permitted in the Township Ordinance to render the proposed tower unsuitable for the proposed use.
The proximity of a Green Acres site immediately adjacent to the property, which created the need for two set back variances does not, by itself, render the property unsuitable for the proposed use.
The legal principles applicable to the grant or denial of a variance, and a court's standard of review of a municipal board's decision in applying those principles, are well settled. Under N.J.S.A. 40:55D-70d, the Board can grant variances for special reasons. Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 37 (App. Div. 2003). The applicant must satisfy both the positive and negative criteria. Ibid.
Under the positive criteria, the applicant must establish "special reasons" for the grant of the variance. The negative criteria require proof that the variance "can be granted without substantial detriment to the public good" and that it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."
[Sica, supra, 127 N.J. at 156 (quoting N.J.S.A. 40:55D-70d).]
"Generally, to satisfy the positive criteria, an applicant must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323 (1998) (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). "An FCC license will satisfy the first requirement of the positive criteria and establish that the facility serves the general public welfare." Nextel of N.Y., supra, 361 N.J. Super. at 37 (citing Smart SMR, supra, 152 N.J. at 336). Under the positive criteria, "if a telecommunications facility requires construction of a tower or monopole, the applicant must prove that the site is particularly suited for that use." Smart SMR, supra, 152 N.J. at 336.
When balancing the positive and negative criteria, the board should "identify the public interest at stake," recognizing that "[s]ome uses are more compelling than others"; "identify the detrimental effect that will ensue from the grant of the variance"; if necessary, "reduce the detrimental effect by imposing reasonable conditions on the use"; and "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Sica, supra, 127 N.J. at 165-66.
Here, because under the Bedminster zoning scheme cell towers are conditional uses in all zoning districts, conditional use standards are applicable to the Nervine application.
[The] . . . conditional use is neither prohibited throughout the zone nor permitted at every location in the zone: rather, it is permitted at those locations in the zone where the use meets the conditions set forth in the zoning ordinance. N.J.S.A. 40:55D-67. Because a conditional use is not a prohibited use, we hold that it need not meet the stringent special reasons standards for a commercial-use variance that we summarized in Medici v. BPR Co., 107 N.J. 1, 9-18 (1987).
[Coventry Square, supra, 138 N.J. at 287.]
To qualify for a conditional use variance, an applicant must show proof of special reasons "sufficient to satisfy the board of adjustment that the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance." Id. at 298. "[A] conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems." Id. at 299.
As to the application of the negative criteria in a conditional use application:
The board of adjustment must evaluate the impact of the proposed [conditional] use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good. . . . In respect of the second prong, that the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance, N.J.S.A. 40:55D-70(d), the board of adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district.
[Ibid. (internal quotations and citations omitted).]
Here, because the Board's ultimate decision approving the Nervine application is not challenged on appeal, we limit our discussion of the application of these legal principles to the court's decision to reverse the Board's initial denial of that application. In doing so, we agree with the trial court, which found that the Board erred in initially denying the application.
In challenging the court's reversal of its denial of the Nervine application, the Board contends that the court failed to apply the arbitrary, capricious, or unreasonable standard and instead relied on a "belief" that the Board would have decided differently had the applications been decided in the opposite order. The Board asserts that the court ignored the legal principle that a court will not disturb a board's decision unless it finds a clear abuse of discretion. See Cell South, supra, 172 N.J. at 82; Medical Realty Assocs. v. Bd. of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988). We find no merit to the Board's arguments.
Judge Ashrafi applied the proper standard of review. He presented a detailed analysis of why the Holtaway denial was not arbitrary, capricious or unreasonable, but the Nervine denial was. It was the Board that directed plaintiff to look for alternate sites; and it was only then that the Nervine property was considered. The court explained:
The Board itself directed Sprint to disregard the priority schedule in searching for a new location for the tower with fewer homes within 500 feet. The Board was fully aware that the Nervine Property was located in a lower priority zone; however, it still reviewed the Nervine application before the Holtaway application had either been granted or denied.
This court agrees with the Board that it can choose to give greater weight to the priority schedule than the number of houses within 500 feet. However, if the Board chooses to do so, it should review the application involving the property higher on the priority schedule first, the Holtaway Property. Then, upon rejecting that application, the Board should review the application for a variance in the lower priority zone, the Nervine Property, without regard to the priority list because it is now of the highest available priority. Reviewing the applications in the reverse order, as the Board did here, allowed the Board to reject both applications based on criteria that the other application fulfilled. The Board cannot reject the Nervine application for being in a lower priority zone when the Board also rejected the Holtaway application in the higher priority zone. The Board's rejection of the Nervine application based on the priority schedule is arbitrary, capricious, and unreasonable.
Judge Ashrafi found that the Board's reasons for initially denying the Nervine application were based on considerations and standards that the Bedminster Code does not specifically impose on telecommunications towers, so they were only relevant when considering the negative criteria for a variance under N.J.S.A. 40:55D-70d. For example, the court correctly concluded that the tree clearing had no relevance to the positive criteria for a d(3) variance from conditions imposed on an otherwise permitted use.
Judge Ashrafi also found that the Nervine property's proximity to a Green Acres site was irrelevant to the negative criteria analysis. We agree with him that the Board failed to state why locating the cell tower near the Green Acres property would be intrusive or detrimental to the neighborhood. No provision of the Bedminster Code prevents building structures near a Green Acres site.
The Board further concluded that although the tower could not easily be viewed by residences within 500 feet, it could be viewed by residences within 800 feet and would thus detract from the nature of the neighborhood. In appropriately responding to that finding, Judge Ashrafi wrote:
The Bedminster Code specifies 500 feet as the relevant distance [for a variance]; nothing in the Code prevents the building of towers that can be seen [farther] away than that distance. Thus, the fact that a tower can be seen from 800 feet away has limited relevance. The Board now concedes so much in its arguments before this court. The only relevance of the view from areas more than 500 feet away may be the additional height of the tower beyond the 120 feet permitted in the Code. The relevant question for the Board . . . is whether the additional height of the tower above the permitted 120 feet causes such damage to the character of the neighboring properties . . . so as to constitute a substantial detriment to the public good or the legislative decision of the Township governing body that such towers should be limited to 120 feet in height.
As a reason for determining that the Nervine site was not the least intrusive means to fill the existing gap in service for plaintiff, and hence that the cell tower was not particularly suited for the site, the Board considered the height of the tower and its proximity to residences within 500 feet. These deviations required bulk variances, and the Board concluded that they were "of such a magnitude that do not justify granting these applicants permission to construct a cell tower and equipment cabinet at this site."
Judge Ashrafi explained, however, that only four residences, one being the Nervine residence, would be within 500 feet of the proposed tower. The closest residence was 447 feet from the tower. And, as the Board stated in its resolution, no part of the proposed tower would be visible from any of these residences.
We agree with the trial court that, in denying the Nervine application, the Board failed to properly analyze the positive and negative criteria. The Board failed to adequately evaluate the impact of the cell tower on the adjacent properties to "determine whether or not it [would] cause such damage to the character of the neighborhood as to constitute substantial detriment to the public good." Coventry Square, supra, 138 N.J. at 299 (internal quotations and citations omitted). Nor did the Board adequately "weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good." Sica, supra, 127 N.J. at 166. Thus, the court's reversal of the Board's decision and remand for reconsideration were not error.
In sum, we find no merit to the Board's argument that Judge Ashrafi erred in reversing its initial denial of the Nervine application. Consequently, as to the Board's cross-appeal, we affirm substantially for the reasons Judge Ashrafi expressed in his November 13, 2006 written opinion. Plaintiff's appeal is dismissed as moot.
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