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Kuryllo v. Parsippany-Troy Hills Zoning Board of Adjustment

September 2, 2010

LARYSA KURYLLO, PLAINTIFF-APPELLANT,
v.
PARSIPPANY-TROY HILLS ZONING BOARD OF ADJUSTMENT, NEW CINGULAR WIRELESS, OMNIPOINT COMMUNICATIONS, NEXTEL, AND MAYOR AND COUNCIL OF THE TOWNSHIP OF PARSIPPANY-TROY HILLS, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2088-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 17, 2010

Before Judges Sabatino and Ashrafi.

Plaintiff Larysa Kuryllo appeals from an order of the Law Division dated October 13, 2009, affirming the decision of the Parsippany-Troy Hills Zoning Board of Adjustment, which granted variances and site plan approval for the construction of a telecommunications monopole. We affirm.

In November 2003, defendant New Cingular Wireless PCS, LLC, filed an application before the Board of Adjustment to construct a 143-foot monopole to hold wireless communications antennas.*fn1

The proposed site is located at 1042 Mt. Tabor Road, also designated as Block 27, Lot 5.01, on the tax map of the Township of Parsippany-Troy Hills. The site is vacant, but in 2002, the Township Planning Board had granted approvals for construction of an assisted living facility on the site, which we are told was to house Alzheimer patients. As of the date of this appeal, no construction had begun on the planned assisted living facility.

In addition to antennas for New Cingular Wireless, the monopole would also hold antennas for Omnipoint Facilities Network, LLC, which is now T-Mobile Northeast, LLC, and Nextel Communications, Inc. (Sprint), and those telecommunications companies joined in the application. The Board held hearings on the application over ten dates from June 2005 through May 2007 to consider the several variances necessary for approval.

The subject property is located in the OS (Office-Service) zoning district, in which telecommunications towers and antennas are not a permitted use under the Township's zoning ordinance. Therefore, the applicants needed a use variance under N.J.S.A. 40:55D-70d(1). Because the height would exceed the thirty-five-foot height maximum for structures, the applicants also needed a variance under N.J.S.A. 40:55D-70d(6) for that deviation. Additionally, bulk and dimensional variances were required under N.J.S.A. 40:55D-70c(1) because the proposal deviated from regulations controlling side yard setback and minimum distance of a telecommunications structure from residential uses.

The applicants presented testimony from expert witnesses to establish the gap in wireless coverage experienced by all three carriers in an area of the Township about one and a half miles square in size. They also presented testimony regarding the network design factors that favored a site for antennas in the vicinity of the subject property. They established their compliance with Federal Communications Commission regulations for such a facility, and they demonstrated they had obtained permits from the New Jersey Department of Environmental Protection. The engineering and planning witnesses also testified about the suitability of the proposed site for construction of the monopole.

One of the witnesses explained that the specific location for construction of the monopole was in very close proximity, within five feet, of the proposed structure for the as yet unbuilt assisted living facility because of stream encroachments at other potential building sites on the property. The witnesses also testified that maintenance could be performed on the monopole and its related equipment despite lack of vehicular access directly to the location.

The applicants also presented testimony regarding their attempts to locate or acquire alternative sites for the monopole. The only existing tall structure within the vicinity that could hold telecommunications antennas was a water tower owned by the Township, but the Township had declined use of the water tower for that purpose. Inquiries made to the summer community association that owned another potential site had gone unanswered.

Plaintiff appeared at the hearings with counsel to object to the application. Her attorney was permitted to cross-examine the applicants' witnesses, and she presented her own expert engineer and expert planner as witnesses against approval. Toward the later dates of the hearings before the Board, an issue arose about the availability of a potential alternative site, vacant property owned by the Township. The Board refused to require further exploration of the availability of that alternative site.

On July 11, 2007, the Board approved the application, granting the required variances and preliminary site plan approval. Plaintiff filed a complaint in lieu of prerogative writs in the Superior Court, Law Division, challenging the Board's decision. After briefing and argument, the Law Division, by Judge B. Theodore Bozonelis, ruled on February 28, 2008, that the record was incomplete concerning the availability of the potential alternative site owned by the Township and remanded the matter for ...


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