July 23, 2008
SPRINT SPECTRUM, L.P., PLAINTIFF-RESPONDENT,
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF ABERDEEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2367-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 8, 2008
Before Judges Fuentes and Grall.
Plaintiff Sprint Spectrum, L.P. ("Spectrum"), filed an application with defendant Board of Adjustment of the Township of Aberdeen seeking a use variance to permit the installation of a wireless telecommunications facility on an existing water tank in the Township. After six public hearings, the application was denied. Plaintiff appealed the denial to the Law Division by way of an action in lieu of prerogative writs.
After considering the arguments presented and reviewing the record developed before the Board, the court reversed and ordered the granting of all necessary variances for the construction of the proposed facility. Defendant now appeals, arguing that plaintiff failed to meet its required burden of proof and that the trial court failed to consider defendant's wireless communications ordinance, passed the day before the variance was denied. We affirm.
Plaintiff filed an application for a use variance in order to attach nine wireless antennas at a height of approximately 130 feet to an existing 145-foot water tower, located at 63 Idlebrook Lane in Aberdeen, New Jersey. Additional electronic equipment cabinets would be located in a fenced-in, enclosed area at the base of the tower. In support of this application, plaintiff presented the testimony of several witnesses at a series of public meetings held by defendant.
Joseph Chiaravallo, plaintiff's radio frequency compliance expert, testified regarding relevant Federal Communications Commission ("FCC") regulations. Mr. Chiaravallo described the FCC's safety requirements regarding human exposure to radio waves by such antennas. According to Chiaravallo, if the antennas were placed at a height of 150 feet, the radio frequency exposure would be "2000 times less than the FCC [sic] most stringent limits." Acknowledging that plaintiff had agreed to drop the height of the antennas to 130 feet, Chiaravallo testified that at this reduced height, the facility would be "12 to 14 times below the FCC most stringent limits."
Glenn Pierson testified as an expert in radio frequency (RF) issues.*fn1 He testified that this particular site would provide service for an area where there was currently insufficient coverage. Pierson also described the physical installation, stating that the nine proposed antennas would be mounted at a height of 130 feet, and that the antennas themselves were five feet tall, approximately ten to eleven inches wide, and seven inches deep. They would be attached by a coaxial cable to the base station.
Using a topographical map, Pierson also identified other base stations or wireless stations operated by Spectrum in the area. Concerning a 240-foot tall tower located at a site called the Manzo Construction property, Pierson testified that the structure was at capacity and could not handle any more antennas, and that even if it were usable from a structural standpoint, it was too close to the Deer Path water tank, another planned location for plaintiff.
Pierson also testified as to the existing reliable service in the targeted area. According to Pierson, "[t]here's a very, very large hole in the center of the map, that's the majority of the southern half of Aberdeen and also the northern portion of Holmdel." The Board asked Pierson to provide the raw data that he had used to determine where there was a gap in coverage to any expert whom the Board might retain to conduct an independent analysis.
Regarding the coverage that could be obtained from the site, Pierson explained that the proposed tower antenna "fills all the gaps and this is primarily due to the way the hills and valleys are situated in this particular area." Thus, Pierson opined that the proposed site was "particularly suited" because:
[I]t's an existing structure and it's in a unique location because it's on a smaller hill that goes down in every direction; anywhere you drive from there you're going downhill until you get over to Line Road, then you go back up the hill again. So because of its location it's on the side of the hill, it's not the highest thing, if I was up on top of the 340-foot hill and I put up a 300-foot tower so I could cover everything, I might be able to get signal there, but now that's going to cause problems in Sayreville, it's going to cause problems over in Jamesburg, it's going to cause problems down to the south because it would be too high and that would be the band playing and creating an issue.
Pierson also gave detailed testimony regarding a "profile distance line test" that he had performed in order to demonstrate what coverage would look like from the Manzo and Ern towers, two alternative sites. Pierson concluded that these sites would not provide the desired coverage.
The Board retained Dr. Bruce Eisenstein as its own radio frequency expert. Although Dr. Eisenstein was sworn in as the Board's witness at the November 15, 2005 meeting, he did not testify. The record shows that Eisenstein requested additional information from plaintiff concerning: (1) the design standard chosen by plaintiff and used by Pierson in his analysis of the gap in coverage in the area; and (2) how placing the antenna at the proposed site would address that gap.
Plaintiff's third witness was Richard Coad, a licensed professional engineer first called at the November 9, 2005 hearing. Coad testified that the proposed site was approximately 43,000 square feet. The water tank was about "144 feet to the top of the bulb" and about 62 feet in diameter. The antennas would be painted to match the color of the water tank. Changes to the site would include relocating an existing gate and installing new fencing around a fifteen-by-twenty-foot area which plaintiff would be leasing for its project. There would be no change in the twelve-foot driveway. There would be a new six-foot chain link fence, similar to the one existing at the site.
Within the fenced area, plaintiff would install two battery cabinets and two radio cabinets. The radio cabinets would be three feet by four feet, and six feet tall. The battery cabinets would be two feet, seven inches by two feet, six inches, and five feet tall. The site would be unmanned, with no water or sewer hookups. Maintenance would occur once every four to six weeks, with a service technician arriving in a pickup or small sport utility vehicle.
Coad testified that the traffic impact of this use would be minimal; there would be no glare, and the unit would operate at a noise level of "about 65 dB 5 feet away from the equipment," which would translate to a noise level at the property line of "about 43 dB." The noise would be generated by air conditioning units in the radio cabinets that keep the equipment cool. The noise level would satisfy the state regulation limiting the maximum nighttime dB level at a residential property line to 50 dB. There would also be a minimum disturbance of the existing tree line around the perimeter of the site.
Coad testified again on January 11, 2006. Prior to this testimony, he submitted revised zoning drawings showing that the ground area to be used by plaintiff was relocated to meet Aberdeen's setback requirements. The proposed utilities were relocated under the existing roadway, and turned 180 degrees so that the back of the equipment would be toward the water tank and no longer toward the adjacent property. This meant that the louder side of the equipment would be facing the water tank.
In response to concerns raised by area residents, plaintiff also made significant revisions to the landscaping plan. The number and species of plants were changed to reflect the recommendations of a neighbor and the Aberdeen tree committee. Plaintiff increased the number of plants from eight to twenty-four, and included three different species of trees suggested by the neighbor.
Coad also presented the Board with a noise study. Using the 1997 Standards for Application of Sound Rating Levels of Outdoor Unitary Equipment, Standard No. 275, Coad testified that:
Sprint's equipment emanates a sound of approximately 65 dB at a distance of 5 feet from the cabinet. The battery cabinets produce a negligible amount of noise. At the property line, the sound would be dissipated to approximately 25 -- will dissipate by about 25 and a half dB so at the nearest property line, the noise or the sound level would be approximately 39 and a half dB and that is going to be well below the state standard of 50 dB.
Coad also expected that the proposed landscaping would further attenuate the sound.
David Karlebach, a licensed professional planner, was plaintiff's fourth and final witness and was admitted as an expert in planning. Karlebach testified that at the time of plaintiff's application, the Township did not have a wireless ordinance. Thus, plaintiff's application would require a use variance no matter where it was located in the Township. However, the proposal did not require a setback variance or a height variance.
According to Karlebach, the water tank itself was a nonconforming use in the zone. Responding to the Board's concerns about whether the proposed use would change the tank's impact on the area in a negative way, Karlebach testified as follows:
It doesn't change any of the site characteristics, and I would point out that it was mentioned earlier on during testimony that there is an existing antenna at this site so this site is also acting as a telecommunications facility, and I think that's significant from a planner's perspective because the use of the property does not change. We're not introducing a foreign use onto the site. It's a water public utility and a telecom facility today. If this application were approved and constructed, it would continue to be such.
Karlebach further stated that plaintiff's proposal:
[G]enerates very little in the way of traffic impact or increased traffic activity. . . . Requires very little in the way of municipal services. Doesn't require certainly any water supply or sewer service, only electric service and telephone service similar to what you would have for a single-family residence. . . . [I]t doesn't generate any appreciable noise, vibration, odors, glare, dust, fumes, or any other noxious influences. From a planner's perspective, it's a completely benign use.
It's a completely passive use.
Thereafter, Karlebach testified concerning the relevant legal standard for evaluating Spectrum's application, opining that plaintiff was entitled, as a matter of law, to the relief requested.
The Board retained an engineer and a planner to evaluate plaintiff's application. Neither professional testified. The planner submitted a memorandum to the Board noting that, from his perspective, the proposed site was particularly suited because there was an existing water tank, which would eliminate the need for the construction of a new tower in the area. The Board also heard from residents of the neighborhood who objected to the application based on potential excessive noise concerns.
While plaintiff's application was pending before the Board, the Township adopted a wireless communications ordinance. The purpose of the ordinance was "to provide specific zoning conditions, standards and limitations for the location, approval and operation of wireless communication antennas within the Township of Aberdeen." The overall objective was to:
[A]llow the provision of wireless communication services while, at the same time, limiting the number of antennas and supporting towers to the fewest possible, and only in those locations which do not negatively impact the prevailing suburban, residential character of the Township and the quality of life enjoyed by its residents.
Under the ordinance, wireless communications antennas are permitted in two prioritized locations. First priority locations, listed in Addendum I of the ordinance, include existing towers or poles or within existing church steeples. Antennas located in these locations are permitted uses, notwithstanding any other provision of the ordinance to the contrary. One of the first priority locations specified is the "American Water Company[,] Along Route 34," with the location of antennas to be "On Existing Water Tank." This is a different location from the one selected by plaintiff.
Second priority locations include new wireless communications towers on land areas within the Highway Commercial or Limited Industrial zoning districts. Antennas located in second priority locations are conditionally permitted uses. The ordinance also outlines the area and setback conditions and the design conditions that must be met.
Finally, the ordinance provides that:
P. Application for "Use" Variances To The Zoning Board
Any application submitted to the Aberdeen Township Zoning Board of Adjustment for a "use" variance to construct or install wireless communication antennas and/or a new wireless communications tower in a location not permitted by this ordinance or for a variance from any of the conditions, standards and limitations established for second priority locations in this ordinance shall be required to submit all of the information required herein for second priority locations, and no such application shall be deemed complete unless all of the required information is provided or unless the need to provide the required information is specifically waived by the Zoning Board of Adjustment.
The Board denied Spectrum's application the day after the effective date of the ordinance. In a resolution dated April 26, 2006, memorializing the denial, the Board noted the following concerns with Spectrum's application:
The Board takes particular cognizance of the fact that in the present situation it is not so much the location of the antennas on an existing water tower, which in its view is not aesthetically offensive or physically dangerous, but in fact it is the location of the ground equipment that has a substantial negative effect on the surrounding residential properties. [ ] While the applicant attempts to describe the noise as being within State standards, the State noise standards are not related to zoning standards. The Township, in zoning certain areas as residential, can and does expect in most instances to provide an enjoyable residential environment which is peaceful and quiet. The specter of air conditioning equipment emitting 43 dB of sound at the residential property line, is to the Board's finding, a loud and obtrusive interference with the quiet enjoyment of the neighborhood that exists around the Idlebrook water tower. The water tower and its function is totally silent. The applicant indicated that each cabinet's air conditioning units running in unison would add an additional 3 dB to the noise generated at the property line. It is only normal and logical to consider that additional telecommunications providers may seek to install additional antennas on the water tower and thereby need additional communications cabinets on the ground. While those future applications are not before the Board, the Board is cognizant and determines that 43 to 46 dB in the middle of the night at the rear property line is a substantial interference with the enjoyment of the neighborhood and accepts the testimony of numerous neighbors as to how quiet the neighborhood is at the present time.
The Board also rejected, as not credible, the testimony of Spectrum's engineer regarding the noise that the proposed use would generate, and criticized Spectrum's alleged failure to address changes suggested by an adjacent property owner. Finally, without the benefit of independent expert testimony, the Board rejected Spectrum's claims that the proposal responded to a "gap in service."
The matter next came before the Law Division by way of Spectrum's action in lieu of prerogative writs. After reviewing the record, and summarizing the evidence presented before the Board, the court found that plaintiff had met the relevant legal standard, entitling it to the relief requested.
The court found that plaintiff had reasonably responded to the Board's request to consider alternative sites. Thus, the Board's finding concluding otherwise was not supported by the record. The court also found that the Board's rejection of the expert testimony presented by plaintiff was arbitrary and unreasonable, because it had not been founded on an alternative expert evidentiary basis. Applying the criteria established in Smart SMR of New York, Inc. v. Borough of Fairlawn Board of Adjustment, 152 N.J. 309, 331-33 (1998), the court concluded that Spectrum was entitled to the relief requested.
We begin our analysis by noting that a decision of a municipal zoning board is entitled to substantial deference. Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005). A reviewing court is limited to determining whether the action of the municipal board was arbitrary, unreasonable or capricious. S&S Auto Sales, Inc. v. Zoning Bd. of Adj. of Stratford, 373 N.J. Super. 603, 615-16 (App. Div. 2004). The board's decision, however, must be reasonably supported by the record. Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 285 (1965).
The authority of a municipality to grant a variance from a zoning ordinance is governed by N.J.S.A. 40:55D-70(d), which states, in part:
The board of adjustment shall have the power to . . . [i]n particular cases for special reasons, grant a variance to allow departure from regulations pursuant to article 8 of this act to permit: (1) a use or principal structure in a district restricted against such use or principal structure[.]
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.
To obtain a use variance, an applicant is required to prove both positive and negative criteria. Smart, supra, 152 N.J. at 323. "In general, the positive criteria require that an applicant establish 'special reasons' for granting the variance." Ibid. The applicant "must prove that 'the use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Ibid. (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)). "To demonstrate that a site is particularly suited for a telecommunications facility, the applicant initially must show the need for the facility at that location." New Brunswick Cellular Tel. Co. v. Boro. of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999).
In New Brunswick Cellular, supra, the Supreme Court concluded that the applicant for a zoning variance to install a telecommunications facility, Comcast, had proven the positive criteria by showing that the proposed site was particularly suitable for the proposed use. Ibid. The Court stated that:
Comcast proved through competent expert testimony that its existing capacity to serve the public in the area was inadequate. The expert also established that the proposed site would redress that lack of capacity. Additionally, the monopole would facilitate the "hand off" of signals from other telecommunications facilities. For technical reasons, Comcast could not use existing telecommunications facilities at alternative sites. In brief, the record shows that Comcast needs the monopole to meet the public demand for telecommunications in the area. [Ibid.]
Here, Spectrum proved, through competent expert testimony of a radio frequency expert, that its existing coverage in the area was inadequate, creating a gap in service. The expert established that there was a need for the facility at the proposed location, by demonstrating that alternative sites would not address the gap in service in the area. Thus, plaintiff satisfied the positive criteria. The Board's conclusions otherwise are simply not supported by competent evidence.
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 purposes of the zone plan and zoning ordinance. N.J.S.A. 40:55D-70(d).
In this case, Spectrum presented expert testimony that: (1) the radio wave exposure to persons on the ground would be well below FCC safety requirements; (2) the project would neither create traffic nor cause a water or sewer service burden on the Township; (3) the equipment cabinets' noise level would be below the State's permitted maximum; and (4) although the proposed use is nonconforming, it would join an existing telecommunications use already present on the water tank, and would not substantially impair the zone plan.
We agree with the Law Division that the Board unreasonably rejected this testimony by plaintiff's witnesses. While the Board was free to either accept or reject the testimony of the expert witnesses, that choice must be reasonably made. Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 537 (App. Div.), certif. denied, 175 N.J. 75 (2002). The Board's rejection of plaintiff's expert testimony was unreasonable, because it was not supported by competent contradictory testimony. Thus, plaintiff satisfied the negative criteria.
Finally, the Board argues that the trial court erred in failing to recognize that plaintiff should have justified why it could not locate its antennas within areas specified by Aberdeen's newly-adopted wireless communications facility ordinance. The ordinance made wireless communication facilities a permitted use in the Highway Commercial and Light Industrial zoning districts.
The Board's argument is not supported by the record. As previously noted, Spectrum presented expert testimony explaining, in detail, why the location selected was particularly suited to address the service gap problem.
Spectrum considered and rejected other sites because they did not meet technical requirements. Assuming that the ordinance was legally available to the Board at the time it considered Spectrum's application, Burcam Corp. v. Planning Board of Medford, 168 N.J. Super. 508, 512 (App. Div. 1979), the sites identified therein were technically unsuitable, Nextel of New York, Inc. v. Borough of Englewood Cliffs Board of Adjustment, 361 N.J. Super. 22, 39-43 (App. Div. 2003). There is nothing in the record to undermine Spectrum's position in this respect.