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New Cingular Wireless PCS, LLC v. Zoning Board of Adjustment of the Township of Hanover

March 10, 2010

NEW CINGULAR WIRELESS PCS, LLC, D/B/A CINGULAR WIRELESS, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HANOVER, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3125-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 25, 2010

Before Judges Reisner and Chambers.

This case involves a dispute between plaintiff New Cingular Wireless PCS, LLC, (Cingular) and the Zoning Board of Adjustment of the Township of Hanover (the Board) concerning a site plan condition imposed by the Board. The condition required Cingular to landscape and maintain the landscaping for a nine foot fence to be installed around a telecommunications equipment site located in a residential neighborhood. The trial court upheld the Board's imposition of a landscaping requirement but limited the maintenance requirement to a period of two years.

Both parties appeal this decision. Cingular contends that it should not be required to landscape and permanently maintain the landscaping. The Board argues that the trial court erred in limiting Cingular's duty to maintain the landscaping to a period of two years, contending that the maintenance requirement should be permanent. While we uphold the Board's requirement that landscaping be imposed, we reverse the trial court's decision to limit the duty to maintain the landscaping to a period of two years.

I.

This dispute arises out of Cingular's plan to install a telecommunications facility in Hanover Township. Cingular proposed to install twelve panel antennas on top of an existing 146.5 foot tall water tower and a ten foot by twenty-five foot compound near the base of the water tower for the placement of equipment and an E-911 antenna. Cingular's original site plan proposed some shrubs for the site. While Cingular will be only a tenant at the site and will not have any employees at the site full time, a technician is expected to visit the site once every four to six weeks for equipment servicing. The property is located in a single-family residential zone in the municipality, adjacent to eleven single-family homes.

Cingular applied to the Board for a use variance under N.J.S.A. 40:55D-70(d)(1), a height variance under N.J.S.A. 40:55D-70(d)(6), a bulk variance under N.J.S.A. 40:55D-70(c), and site plan approval for the proposed facility. The application was denied by the Board, and, on appeal to the trial court, that decision was reversed. By order dated May 27, 2008, the trial court deemed Cingular's application approved, but remanded the matter back to the Board "solely for the limited purposes of the consideration by the Board of the imposition of any reasonable site plan conditions relating thereto."

On remand, after further hearings, the Board imposed various conditions on the site plan. The condition at issue in this appeal is the one governing landscaping for the fence. A fence is required around the facility to provide security and to serve as a sound barrier. To meet sound level requirements, the fence must be nine feet high and a solid wall. The Board's planner, who is also a landscape architect, testified that fences in excess of six feet are not permitted in a residential zone and that landscaping was needed to minimize the visual impact of the proposed nine foot fence. To soften the effect of such a towering fence in a residential neighborhood, the Board required that the fence be stained to create the illusion of a board fence, and it also imposed the following landscaping requirement:

The applicant shall submit a landscape plan to the Township Planner for his approval. The landscape plan shall provide for shrubs five to six feet tall at planting surrounding the fenced in equipment compound. The species of shrubs, the height, caliper, and the location and spacing, the season and method of planting are subject to the approval of the Township Planner. The landscaping is to be permanently maintained and pruned. Dead, diseased and missing landscaping is to be replaced to the approval of the Township Planner.

Cingular appealed to the trial court challenging the imposition of this landscaping requirement, in part due to the fact that the site has no water line.*fn1 The trial court overturned the provisions requiring that landscaping be permanently maintained and instead imposed a requirement that Cingular maintain the landscaping for a period of two years only. In doing so, the trial court noted the Board planner's testimony that the plants only need to be regularly watered during their first season, and after that watering is not generally necessary. The trial concluded that "we should have a period in there of two seasons, two years. That way you are going through one season and then the next season to make sure the plants are okay. That is reasonable under the circumstances."

II.

On appeal, Cingular acknowledges that as a general matter, in appropriate circumstances, a board may impose landscaping as a condition. However, it contends that in the circumstances of this case, the requirement that it provide landscaping for the fence and that it maintain that landscaping is arbitrary, capricious, and unreasonable. It asserts that Hanover's zoning ordinance does not provide clear and definite standards regarding planting or permanent maintenance of landscaping and that the landscaping and maintenance requirement does not serve any legitimate objective of the Township's zoning ordinance. It argues that the condition is not sufficiently definite to advise Cingular what it must do. It further contends that the condition is tied to Cingular and not to the land. It asserts that the condition is unreasonably burdensome due to the lack of a source of water and the passive use of the property. It argues that the fence is "attractive" and serves as a visual buffer for its equipment, so that it should not be required to provide a further visual buffer. It further notes that the facility is ...


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