March 10, 2010
NEW CINGULAR WIRELESS PCS, LLC, D/B/A CINGULAR WIRELESS, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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."
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 dwarfed by the 146.5 foot tall water tower that dominates the neighborhood. Cingular also contends that aesthetic considerations do not justify imposition of the landscaping and permanent maintenance requirement and that the Board had no credible expert testimony to support the condition.
The scope of our review is limited. We must apply the same standard of review as that used by the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super 319, 331 (App. Div. 2004). The determinations of a board of adjustment are presumed valid and will be overturned only when they are "so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div.) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)), certif. denied, 175 N.J. 75 (2002). The courts also must recognize that boards of adjustment "possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 167 (1992). However, on legal questions, our review is de novo. Darst v Blairstown Twp. Zoning Bd. of Adjustment, 410 N.J. Super. 314, 325 (App. Div. 2009).
In appropriate circumstances, a board of adjustment considering an application for a variance may mitigate the negative impact of a proposed use by "imposing reasonable conditions." Sica v. Bd. of Adjustment of Twp. of Wall, supra, 127 N.J. at, 166. The conditions are "generally development-specific and . . . aimed at mitigating specific concerns arising in connection with the proposed project." William M. Cox, New Jersey Zoning and Land Use Administration § 28-4.1 at 657 (2009). The condition "must be reasonably calculated to achieve some legitimate land use purpose." Meridian Hosps. Corp. v. Borough of Point Pleasant, 325 N.J. Super. 490, 504 (App. Div. 1999) (quoting Berninger v. Bd. of Adjustment of Midland Park, 254 N.J. Super. 401, 405 (App. Div.), aff'd o.b., 127 N.J. 226 (1992)), certif. denied, 163 N.J. 80 (2000).
Generally, "conditions imposed must be directly related to and incidental to the proposed use of the land and must be without regard to the person who owns or occupies it. . . . To be valid, conditions must (1) not offend against any provision of the zoning ordinance; (2) not require illegal conduct on the part of the permittee; (3) be in the public interest; (4) be reasonably calculated to achieve some legitimate objective of the zoning ordinance; and (5) znot be unnecessarily burdensome to the landowner." [Darst v. Blairstown Twp. Zoning Bd. of Adjustment, supra, 410 N.J. Super. at 326 (quoting Orloski v. Planning Bd. of Ship Bottom, 226 N.J. Super. 666, 672 (Law Div. 1988), aff'd, 234 N.J. Super. 1 (App. Div. 1989)).]
In light of this law and the facts in this case, we do not find that the Board's action was arbitrary, capricious or unreasonable. The Board was confronted with a massive fence being built in a residential neighborhood, three feet higher than the limit permitted in the zone. The fact that the neighborhood is already burdened with the disruptive appearance of a tall water tower does not mean that the neighborhood should not be protected from further erosion of its residential character. Further, the fence at pedestrian level will be readily visible in the neighborhood. The Court has stated that "aesthetics, access, landscaping, or safety improvements might all be appropriate conditions for approval of a subdivision with variances." Urban v. Planning Bd. of Manasquan, 124 N.J. 651, 661 (1991); see Lang v. Zoning Bd. of Adjustment of North Caldwell, 160 N.J. 41, 60-61 (1999) (affirming the granting of a "c" variance for swimming pool where the board had imposed some landscaping to "supplement" an existing fence); see also N.J.S.A. 40:55D-41(c) (authorizing site plan review ordinances to include requirements for screening and landscaping).
The landscaping condition imposed by the Board is consistent with the zoning ordinance of the Township of Hanover. That zoning ordinance requires that if a fence or wall required to screen an outdoor storage area in nonresidential zones exceeds the height of six feet, the board may reduce the visual impact of the height with "supplemental plantings." Hanover Twp., N.J., Land Use and Dev. Ordinance § 166-124(A)(4). It also provides that the base of a cellular tower, pole, and similar structures "be screened from the view of adjoining properties and streets at ground level by appropriate landscaping and/or fencing." Id. at § 166-150(B)(5). When a variance application involves a use that is permitted or is very similar to another use permitted in another zone, the board may consult the standards governing the use in the other zone, and impose those standards as conditions of granting a variance.
Cox, supra, § 28-4.1 at 660. Since the Cingular fence is located in a residential zone, these portions of the ordinance do not directly apply here. However, the requirement for landscaping is a logical condition for fences above six feet and cellular facilities within the residential zone. The landscaping requirement serves the public interest and is designed to further the aims of the zoning ordinance.
We also reject Cingular's argument that it should not be required to maintain the landscaping. The trial court's decision to limit Cingular's duty of maintenance to a period of two years is reversed. The purpose of the landscaping condition is to buffer the negative impact of a high and solid fence in a residential neighborhood. So long as the fence is present, that need is present. If the plantings become diseased, wither or die, then the fence is without its buffer. As the Board cogently argued, when a board requires that lighting be provided in an area, the applicant cannot decline to replace light bulbs that go out. Here, healthy landscaping is necessary to serve as a scenic buffer, and for the landscaping to continue to serve that purpose, it must be maintained.
Cingular argues that the maintenance requirement imposes too heavy a burden and is not reasonable. Due to the absence of access to water, we recognize that the burden in providing landscaping at this site is somewhat heavier than usual. However, as the Board's planner explained, a watering truck would not routinely be required once the plants are established. He estimated that a watering truck would be needed about five times until the plants are established, assuming they are in good condition and planted in the appropriate season.
Cingular has a person attending to the premises once every four to six weeks who presumably could monitor the condition of the vegetation. The maintenance of landscaping is a regular part of the care of most facilities; the problems faced here are not in any way prohibitive.
The balance of the arguments raised do not merit further discussion. R. 2:11-3(e)(1)(E).