On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9249-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Motion for reconsideration granted.
Resubmitted June 23, 2010
Before Judges Skillman, Fuentes and Simonelli.
On May 24, 2010, we issued our decision in this appeal, which reversed a judgment of the Law Division reversing a resolution of the Tenafly Zoning Board of Adjustment (Board) that denied an application by plaintiff New York SMSA Limited Partnership d/b/a Verizon Wireless (Verizon) for a use variance and other land use approvals required to construct a cell tower on property owned by St. John's Greek Orthodox Church located in a residential zone. N.Y. SMSA Ltd. P'ship. v. Zoning Bd. of Adjustment of Tenafly, No. A-1152-08T2.
Verizon filed a motion for reconsideration, which argued that our decision was based on various legal and factual errors. We asked appellants to submit a response to the motion. Upon further review, we determined that reconsideration was required. We now conclude that our prior opinion contained legal and factual errors that require the opinion to be vacated and the case remanded to the Board.
Our opinion stated, quoting New Brunswick Cellular Telephone Company v. Borough of South Plainfield Board of Adjustment, 160 N.J. 1, 6 (1999), that "[t]o satisfy the negative criteria, 'in addition to proving that the variance can be granted without substantial detriment to the public good, an applicant must demonstrate through an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'" N.Y. SMSA, Ltd. P'ship., supra (slip op. at 10). We agree with Verizon that this was an incorrect statement of the applicable law. Although this test governs other applications for use variances, except those involving inherently beneficial uses, see Medici v. BPR Co., 107 N.J. 1, 21-23 (1987), it does not govern use variances for telecommunications facilities such as cell towers. Instead, in determining whether an applicant for a use variance for a telecommunications facility has satisfied the negative criteria for a use variance, a board must "weigh, as [it] would with an inherently beneficial use, 'the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.'" New Brunswick Cellular Tel., supra, 160 N.J. at 15 (quoting Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment, 152 N.J. 309, 332 (1998)).
Although we erred as to the law applicable to satisfaction of the negative criteria for the grant of a use variance for a cell tower, this by itself would not warrant relief because our decision was based solely upon Verizon's failure to satisfy the positive criteria for the grant of a use variance. See N.Y. SMSA, Ltd. P'ship., supra (slip op. at 3, 12-14). However, our opinion contains other errors.
First, in discussing the positive criteria for the grant of a use variance for a cell tower, we stated, citing New York SMSA, Ltd. v. Township of Mendham Zoning Board of Adjustment, 366 N.J. Super. 141, 149-50 (App. Div.), aff'd o.b., 181 N.J. 387 (2004), that an "applicant [must] show that the proposed facility will fill the gap in the least intrusive manner, and that the applicant made a good faith effort to investigate alternative technologies and alternate sites." N.Y. SMSA, Ltd. P'ship., supra (slip op. at 12). We agree with Verizon that this was an incorrect statement of the applicable law. Mendham did not involve the positive criteria for the grant of a use variance. Instead, Mendham involved a claim under the Federal Telecommunications Act, 47 U.S.C.A. § 332(c)(7)(B)(i)(II). See 366 N.J. Super. at 158-62. Verizon does not rely upon the Federal Telecommunications Act in this action challenging denial of its application for a use variance for a cell tower. Therefore, we erred in applying the test set forth in Mendham in determining whether Verizon had satisfied the positive criteria for the grant of a use variance.
The correct test for determining whether an applicant for a use variance to construct a cell tower has satisfied the positive criteria for a use variance is the one set forth in Smart SMR, supra, 152 N.J. at 332, -- that "the use is particularly suited for the proposed site." We have previously indicated that this test may be satisfied without necessarily showing that a proposed site for a telecommunications facility would be the "least intrusive" site. In Ocean County Cellular Telephone Company v. Township of Lakewood Board of Adjustment, 352 N.J. Super. 514, 529 (App. Div.), certif. denied, 175 N.J. 75 (2002), we observed that "[t]o require the applicant to disprove the 'possible existence' of [less intrusive alternative] sites may be a daunting, if not impossible task because of the uncertainty as to the availability of such sites, as well as the physical variables that may render them unsuitable." However, "a provider's reasonable and good faith effort to find an alternative, less-intrusive site is clearly relevant to the 'particularly suited' analysis." Id. at 528; see also Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 390-91 (App. Div. 2003).
Second, there are factual errors in our prior opinion, to which we now turn. Verizon argues that we erred in concluding that the opinion of Verizon's expert regarding the unavailability of alternative sites was an "impermissible net opinion." N.Y. SMSA, Ltd. P'ship., supra (slip op. at 13). We have reviewed the specific parts of the transcript of the hearing before the Board that Verizon relies upon in support of this argument. Based on this review, we agree that the testimony of Verizon's expert, David Stern, a radio communications wireless systems design engineer, that other nearby rooftop antennas on existing structures and other telecommunications facilities in the area are not suitable as alternative sites that could fill the coverage gap, was not simply an impermissible net opinion. We quote selected portions of that testimony:
The area that we're trying to serve with this particular site is a unique area. . . . [T]here's a ridge line on the east part of Tenafly just west of Sylvan Avenue and the Palisades Interstate Parkway. ...