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Sprint Spectrum, L.P. v. Board of Adjustment of the Township of Aberdeen

July 23, 2008

SPRINT SPECTRUM, L.P., PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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