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New York SMSA Limited Partnership v. Zoning Board of Adjustment of the Borough of Tenafly

May 24, 2010

NEW YORK SMSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF TENAFLY, DEFENDANT, AND WONHO AND OKSOON CHONG, GEORGE AND EWA PRUSSIN, TULIN AND ARISAN ERGIN, AVRAHAM AND LIORA GILOR, ELLEN SHELDON AND DAVID SIMSON, INTERVENORS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9249-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 14, 2009

Before Judges Skillman, Fuentes and Simonelli.

In February 2007, plaintiff New York SMSA Limited Partnership d/b/a Verizon Wireless (Verizon) applied to defendant Zoning Board of Adjustment of the Borough of Tenafly (Board) for variances*fn1 and site plan approval to construct an unmanned wireless telecommunications facility on property (the site) owned by St. John's Greek Orthodox Church (Church), which is located in the R-40 zone where such facilities are not permitted.*fn2 The proposed facility consists of a one hundred and twenty foot wireless telecommunications monopole with a seven foot lightning rod, and an approximately forty-by-thirty-foot fenced-in equipment shelter at its base (the tower and shelter may sometimes be collectively referred to as "the facility"). In denying the application, the Board concluded that Verizon failed to satisfy the positive and negative criteria for the grant of a use variance pursuant to N.J.S.A. 40:55D-70d.

Intervenors appeal from the September 15, 2008 Law Division judgment reversing the Board's decision. On appeal, intervenors contend that the trial judge: (1) failed to afford deference to the Board's decision to deny the use variances; (2) incorrectly assessed the positive criteria including the adequacy of the alternative site analysis; (3) incorrectly upheld Verizon's claim that the site was particularly suited for the proposed use; and (4) inappropriately rejected the Board's finding that the negative criteria outweighed the positive criteria. Because we conclude that Verizon failed to satisfy the positive criteria, we reverse.

I.

Verizon is a wireless telecommunications service provider licensed by the Federal Communications Commission (FCC). The Telecommunications Act of 1996, 47 U.S.C.A. § 332, requires such providers to provide "substantially above a level of mediocre" wireless service to its customers and a signal for all FCC approved cell phones in northern New Jersey. See 47 C.F.R. § 22.940.

In the early 1980s, Verizon provided service to its customers under an 800 MHz B-band cellular license. Upon reaching capacity limits on that band, Verizon acquired a 1900 MHz PCS band cellular license in order to provide additional capacity. Coverage under both licenses required use of the same cellular coverage sites.

According to Verizon's radio frequency (RF) expert,*fn3 who conducted a drive test, Verizon identified a need for the facility due to a gap in reliable coverage mainly provided by the 1900 MHz band in an area of Tenafly known as the "ridge area." From the center of the ridge area, the gap extends approximately three-quarters of a mile to the north, three-quarters of a mile to the south, and one-quarter of a mile to from east to west. It affects approximately one hundred and twenty residences, the Church and the Jewish Community Center (JCC), and results in "terrible" or no wireless service for those customers.

Based on drive tests, Verizon's RF expert identified the gap as a "113 dbm path loss," using a minus 78 dbm standard. The Board's expert, who conducted no independent tests, agreed there was a gap but concluded it would be smaller using a minus 85 dbm standard. The Board's expert also agreed that the gap was "a difficult one to fill because of the topography of the area[,]" and that Verizon could not resolve the gap by locating the facility in the Commercial Antenna-Composite (CA-C) zone, where wireless antennas are permitted. Verizon's expert responded that using a minus 85 dbm standard would still result in unreliable service due to the lack of a dominant server in the area.

There are other wireless telecommunications facilities near the site, including antennas on a pre-existing building in downtown Tenafly, which lies below the ridge area; antennas on the roof of Englewood Hospital; antennas on a one hundred and twenty-five foot monopole in Alpine; and a rooftop wireless antenna facility in Englewood Cliffs. Verizon's expert concluded, without any explanation, that these facilities could not fill the gap.*fn4 The expert concluded that the installation of a dominant server on the ridge with focused antennas up and down the ridge line was the only way to fill the gap, and this required the construction of a one hundred and twenty foot tower.

Verizon focused its search for a location primarily in the ridge area because "[it] really [did not] have another spot -- [it did not] know another way to serve it." Verizon concluded that a portion of the Church's property was the only site suitable for the facility, and that locating it there would fill the gap. At the Church's direction, Verizon would construct the facility in a wooded area one hundred and seventy-six feet from the nearest residence and ninety-eight feet from the nearest property line instead of on an existing paved surface adjacent to the Church and further from the residences.

The Board's expert agreed that "at least from a radio frequency point of view, the selection of the site is appropriate." However, he concluded that this "doesn't mean it's the only site and it doesn't mean it couldn't be moved around a little, but at ...


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