On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2249-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Lihotz and Ashrafi.
Plaintiff Enrique Cuevas appeals from the dismissal of his action in lieu of prerogative writs, by which he sought to set aside approval granted for a new telecommunications facility in the Township of Holmdel. We affirm parts of the trial court's judgment, but we reverse the judgment of dismissal and remand for a full trial on issues that the trial court excluded from its review.
In early 2006, defendant Sprint Spectrum, L.P., applied to defendant Township of Holmdel Zoning Board of Adjustment for variances and site plan approval under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99. Sprint sought to construct a new telecommunications facility by appending nine panel antennas to an existing water tank located in a residential zoning district. The Board held public hearings on four dates from April to September 2006.
The subject property is a wooded flag lot, almost nine acres in area, designated as 21 Deer Path Road in Holmdel Township. The main structure on the property is a water tank that is 140 feet in height and 62.5 feet in diameter, located in the rear of the property, approximately 1,100 feet from Deer Path Road. The only other improvements are a gravel driveway leading to the water tank and a chain link fence around it. The nearest residence is 284 feet from the tank. One other neighboring home is within 500 feet, and ten homes within 1,000 feet. The tank is heavily screened by mature vegetation.
The height of the water tank will not be increased by the nine antennas Sprint will install on the top surface. At the base of the tank, Sprint plans to construct a fifteen by twenty-five foot gravel area, surrounded by a wooden fence seven feet tall. Within the fenced area, Sprint will install an electrical meter panel, a telephone connection cabinet, and two equipment cabinets, each about the size of a refrigerator. Electrical and telephone service will be provided through underground cables running along trenches in the driveway. The driveway will be slightly re-aligned to avoid encroachment on a neighboring lot, and one gravel parking spot will be added near the tank.
Sprint anticipates scheduled service by a technician only about once a month during the day. Otherwise, there will be no activity at the telecommunications facility, except emergency service. Attached to the steel frame holding the equipment and telephone cabinets will be a pole, about eight feet tall, with flood lights directed at the equipment for use only in the event of nighttime service. The lights will be operated by a manual switch, with a timer as back-up to turn them off if the technician does not.
The Holmdel Township zoning ordinance requires that an applicant for telecommunications facilities prove a need for wireless antennas within the Township. The applicant must present expert testimony as to the "suitability" of "all existing communications towers within Holmdel Township and surrounding area." Holmdel, N.J., Revised General Ordinances § 30-155.2b (2009).
Sprint presented expert testimony from four witnesses:
(1) Joseph Chiaravallo, an expert in radio frequency compliance, who testified that the proposal would be in compliance with regulations of the Federal Communications Commission (FCC);
(2) Glen Pierson, an expert in radio frequency, who testified about a "gap" in Sprint's service within the proposed coverage area and possible alternate sites Sprint reviewed before selecting the water tank;
(3) Jeffrey Kirby, an engineer, who described the property, the proposed changes, and possible alternate sites; and
(4) David Karlebach, a planning expert, who testified about his understanding of the Township's zoning ordinances and the statutory criteria for variances that Sprint may need. The Board also heard the testimony of its own planner, Paul Phillips, and of Marilyn Manzo, representing one of the alternative sites considered by Sprint, as well as the comments of a number of objectors to the proposal, including plaintiff Cuevas.
The Township ordinance designates the zoning district of the property as R-40B, "Residential and Agriculture." Although wireless telecommunications antennas and towers are permitted as conditional uses within the Township, id. § 30-127.5b, residential districts are not included in a listing of sequential preferences for the location of new facilities. The ordinance provides that antennas must be located in the following order of priorities:
(a) The first priority shall be existing wireless communications towers, including those owned by Holmdel Township, within any nonresidential district in the municipality.
(b) The second priority shall be any other wireless communication towers located in Holmdel Township.
(c) The third priority shall be an existing building or structure located within a nonresidential district in Holmdel Township.
(d) The fourth priority shall be a new tower located within a nonresidential district in Homdel Township. [Id. § 30-155.2b(2).]
Sprint's planner, Karlebach, testified that although the proposal meets all the requirements of the ordinance, it is not in a "prioritized" site listed in section 30-155.2b(2). Since the proposal does not "satisfy those locational criteria," he believed that Sprint needs a "d(3) conditional use variance." See N.J.S.A. 40:55D-70d(3). However, he did not believe that a second "d" variance under N.J.S.A. 40:55D-70d(1) is necessary for multiple uses of property because the ordinance already permits antennas to be appended to existing buildings.
The ordinance states that "antennas may be erected on existing towers, buildings or structures" and "an equipment compound may be constructed in support of such antennas consistent with the following requirements:"
(a) Antenna arrays may be mounted on existing buildings or structures but shall not extend beyond the overall height of any such building or structure by more than ten (10) feet.
(b) An equipment compound consisting of no more than four thousand (4,000) square feet in area may be erected in support of such antenna arrays provided it is:
[Shielded from public view].
(c) The equipment building shall be situated within a fence at least seven (7) feet high . . . which shall not be of chain link and shall include a locking security gate.
(d) Antennas . . . shall be suitably finished and/or painted so as to minimize their visual impact on the landscape. . . . [Id. § 30-155.2b(4).]
The Board considered whether an alternative site was suitable for Sprint's needs. It heard testimony that the Manzo tower, an existing telecommunications tower in nearby Marlboro Township, could not support Sprint's antennas because it was already overloaded with antennas and equipment. Marilyn Manzo, representing the owners of the Manzo tower, expressed interest in pursuing Sprint's needs but admitted that the tower "currently has more equipment on it than it can handle." She stated that she was "in the process of performing an audit . . . [which] will ultimately result in the removal of excess equipment." She stated that the audit would be completed in two months, at which time she would have equipment removed that is no longer in use, and hire a company to conduct another study to show that the Manzo tower was no longer overloaded.
At the conclusion of the 2006 hearings, the Board voted four to two in favor of Sprint's application, but because five votes are needed for a "d" variance, see N.J.S.A. 40:55D-70d, the application was denied.
The Board adopted a resolution of denial on November 9, 2006 (the first or 2006 resolution). In that resolution, the Board concluded that a "d(3)" conditional use variance is required because the proposal fails to meet any of the "siting ...