July 20, 2009
OMNIPOINT COMMUNICATIONS, INC., PLAINTIFF-RESPONDENT,
BOROUGH OF FAIR LAWN ZONING BOARD OF ADJUSTMENT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3568-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 28, 2009
Before Judges Cuff, Fisher and Baxter.
Plaintiff Omnipoint Communications, Inc. (Omnipoint) sought a use variance to construct a third cell tower in the Borough of Fair Lawn (Borough). It was undisputed that there was a gap in coverage and the selected site was the most suitable location in the Borough to address the service gap. Defendant Borough of Fair Lawn Zoning Board of Adjustment (Board) denied the variance and appeals the Law Division order reversing its decision as arbitrary, capricious and unreasonable. We affirm.
In 1997, the Borough designated six sites in the town where telecommunications facilities would be permitted. All sites were owned or controlled by the Borough. Three of the sites, including the Borough-owned 200-foot high water tank, were removed from the list due to public criticism. Omnipoint constructed wireless facilities at the three remaining sites. Another carrier occupies the third site.
In 2006, Omnipoint sought a fourth site in the Borough to install a telecommunications facility to address a gap in service. Its studies identified two suitable locations. One was the Veterans of Foreign Wars (VFW) facility; the second was an elementary school located across the street from the VFW. Omnipoint made inquiries to the leadership of both facilities. School officials failed to respond; Omnipoint entered a lease with the VFW to install its wireless communication facility on its site. Omnipoint proposed to construct a sixty-foot monopole disguised as a flag pole. The initial proposal for the associated equipment at ground level included an outdoor, unmanned facility; eventually, it was moved inside the VFW hall.
The VFW facility is located on the corner of Morlot Avenue and McKinley Street. It is in a residential zone that does not allow telecommunications facilities.
Omnipoint applied for a use variance and site plan approval to construct the wireless monopole facility. In support of its application, Omnipoint submitted testimony from an expert in radio frequency engineering and an expert on Federal Communications Commission regulations and standards. The latter expert testified that the proposed facility complied with all federal and state regulations and did not pose a threat to the public health. The engineering expert testified that a gap in service in the Morlot Avenue/Route 208 area existed and the proposed facility would remediate the situation. Notably, the expert retained by the Board to review the engineering and placement aspects of the proposal concurred with the Omnipoint experts in all respects.
Omnipoint also presented a planning expert. His unrefuted testimony established that the VFW facility was the only suitable site within the search area and that the monopole was a "benign commercial use." He emphasized that the proposed telecommunications facility would not produce noise, odors or traffic. He conceded that the height of the monopole would be considered by some a detrimental impact, but testified that the effect was ameliorated by its dual use as a flagpole. Moreover, three non-residential uses are within the residential zone, including the VFW hall and a school.
The Board denied the variance. In its resolution, the Board found that Omnipoint presented testimony that it sought 95% reliability in coverage but offered no evidence about the current reliability standard in the area. The Board expressly found that Omnipoint produced inadequate evidence that service is unavailable in the area.
The Board also found that the school property was a "less intrusive site." It found that Omnipoint presented insufficient evidence of its attempts to locate the monopole at this site. Finally, the Board found that the size of the monopole produced a negative visual impact and the proposed disguise was inadequate to mitigate this effect.
Omnipoint filed a complaint in lieu of prerogative writs. Judge Jonathan Harris reversed the denial and granted approval of the amended site plan. In his oral opinion, he found that the Board's finding that Omnipoint had failed to establish a gap in service, i.e., the need for the additional facility, was arbitrary, capricious and unreasonable. In doing so, he reviewed the relevant cases governing wireless telecommunications facilities, and acknowledged the presumption of validity enjoyed by actions of municipal land use bodies. Nevertheless, he found that "[t]he board is not free to reject uncontradicted expert testimony unless it explains why; and, then, that explanation has to be non-arbitrary, non-capricious and non-unreasonable." He noted that "the board's own expert confirmed all of the material issues regarding the gap in service."
In his oral opinion, Judge Harris also acknowledged that Omnipoint was required to prove that the proposed site was particularly suited for the use. In addition to finding that Omnipoint had marshalled sufficient evidence to meet that requirement, he criticized the Board's reliance on alternate sites. The judge stated:
And while alternate siting is not irrelevant, to make it the focus or an important facet loses sight of site suitability; because it's putting . . . either an impossible task on an applicant, or injecting so many vagaries into the process that it becomes meaningless.
Moreover, the judge found that Omnipoint submitted ample evidence of good faith efforts to locate alternative sites.
Finally, on the issue of suitability, Judge Harris held that "[t]he evidence is compelling, overwhelming and undeniable that the site is a suitable site for the associated antennas, the equipment and the monopole."
As to the negative criteria, Judge Harris held that the record was barren of any evidence to suggest that the monopole would create an unsafe condition, increase traffic, increase noise in the area or introduce noxious odors. The Board's reliance on the negative feature of the monopole, its height, did not outweigh the positive criteria, including the need for the facility and the particular suitability of the site.
On appeal, the Board argues that it properly concluded that the applicant failed to meet its burden to establish the positive and negative criteria, and the Sica*fn1 balancing test. It also argues that its resolution fully complied with the requirements of the Municipal Land Use Law.
We affirm substantially for the reasons expressed by Judge Harris in his September 3, 2008 oral opinion. Omnipoint submitted unrebutted expert testimony of a gap in service and overwhelming evidence, fully supported by unrebutted expert testimony, that the VFW facility was particularly well-suited for location of the monopole. An applicant is not required to disprove the possible existence of alternative suitable sites. Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 528-29 (App. Div.), certif. denied, 175 N.J. 75 (2002). Moreover, it is disingenuous for the Board to identify a preferred alternative site which cannot accept the facility absent a use variance. N.Y. SMSA v. Twp. of Mendham Zoning Bd. of Adj., 366 N.J. Super. 141, 163 (App. Div.), aff'd o.b., 181 N.J. 387 (2004).
The September 15, 2008 Order for Judgment is, therefore, affirmed.