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Omnipoint Communications, Inc. v. Zoning Board of Adjustment of the Township of Wall

August 17, 2009

OMNIPOINT COMMUNICATIONS, INC., PLAINTIFF-APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF WALL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5153-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 11, 2009

Before Judges Payne and Waugh.

Plaintiff Omnipoint Communications, Inc. (Omnipoint) appeals the Law Division's dismissal of its action in lieu of prerogative writs, which challenged the decision of defendant Zoning Board of Adjustment (Board) of the Township of Wall (Township) denying its application for a conditional-use variance for the construction of a cellular communications tower (tower). Because Omnipoint failed to demonstrate that the actual fall zone of the proposed tower would not include an adjacent power substation, we affirm.

I.

We glean the following factual and procedural background from the record. Omnipoint, which is licensed by the Federal Communications Commission as a wireless telecommunications provider, recognized a gap in its wireless communication coverage and sought to remedy it by constructing a 130-foot tower in the Township on a portion of a 1.75 acre lot owned by Jersey Central Power & Light (JCP&L).

Telecommunications facilities are a permitted conditional use in the Township's GI-2 zoning district. However, because Omnipoint's proposal for the tower did not satisfy the requirements for the conditional use, Omnipoint had to apply to the Board for a conditional-use variance pursuant to N.J.S.A. 40:55D-70(d)(3). Variances were required because the proposed tower did not meet the required setbacks from both the applicable property lines and from the existing JCP&L substation.

Omnipoint filed an application for a conditional-use variance in November 2003. Its initial application sought to construct a 170-foot tower, in the form of a monopole, in a fifty-by-fifty-foot, fenced-in compound. At a Board hearing on April 7, 2004, Omnipoint amended its application to reduce the height of the proposed tower from 170 feet to 130 feet. At a subsequent meeting on June 2, 2004, the Board requested that Omnipoint relocate the tower slightly within the compound to bring it more in line with the property-line setback requirements. Omnipoint agreed to do so.

The Board focused on two separate issues related to public safety. First, the proposed tower site is near a general aviation airport used by aircraft towing banners for advertising along the shore. There was concern that the tower might be in the flight path of those aircraft. Second, there is an existing JCP&L power substation on the lot. The monopole tower was proposed for placement approximately fifty feet away from the power substation, with the tower's perimeter fence immediately adjacent to the power station. The governing ordinance, however, required that the tower be a distance of twice its height, in this case 260 feet, away from the closest nonresidential use, i.e., the power substation.

Omnipoint presented evidence to the Board on both safety issues, including the "Determination of No Hazard to Air Navigation" report for the proposed tower issued by the Federal Aviation Administration (FAA) on June 15, 2004. Omnipoint also presented testimony that the monopole was designed to buckle in on itself, rather than to fall over as would a tree. In addition, there was testimony that such monopoles were able to withstand high winds and hurricanes.

Following several days of hearings, the Board voted on July 21, 2004, to deny Omnipoint's application for the conditional-use variance. In its resolution, adopted on October 6, 2004, the Board explained its reasoning for denying Omnipoint's application. The Board found:

23. Several members of the public testified their concerns related to the air traffic from the adjacent airport. Applicant submitted to the Board its approval from the FAA. Applicant testified that the FAA formed their calculations based on the determination of the location of the nearest runways to the airport.

24. However, the public was concerned, as was the Board, with the fact that the adjacent airport is also used for the landing and take-off of "banner planes." These are the planes that tow large banners behind them used for advertising especially along the oceanfront in the summer.

25. Applicant was asked whether the FAA had taken into consideration the landings and the take-offs of these types of planes with their banners being towed, some of which may land or take off outside the runways.

26. Applicant indicated they had no information as to whether the FAA took the question of banner airplanes into account in making their determination that the height of the tower was safe.

27. This was further exacerbated by the public and the Board's concern that the tower is located on the Jersey Central Power & Light substation. In fact several of the conditions requiring setbacks from commercial usages are not met as a result of the proximity to the substation use.

28. The Board was concerned that there was not sufficient evidence in the record to establish that the tower was not a safety hazard related to the banner planes that took off from the airport, especially with the problems that could occur if a plane or a banner were to crash into the tower and what might happen if the tower struck the power station.

29. Therefore, the Board finds that the applicant failed to carry its burden of establishing that the tower presents no substantial safety concerns because there was not sufficient evidence submitted to the Board that the banner planes were taken into account by the FAA and in light of the tower's proximity to the substation, which violates the conditional requirements for this use, the Board concludes ...


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