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Kuryllo v. Parsippany-Troy Hills Zoning Board of Adjustment

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 consideration of whether the Township was willing to sell or lease that site to the applicants for construction of their monopole.

On remand, the Township council heard a presentation by the applicants on three dates in October and November 2008 regarding the alternative site. Plaintiff attended the council meetings but did not present any evidence of her own. On November 25, 2008, the Township Council voted not to offer the alternative site. With that additional information added to the record, the Board of Adjustment voted to re-approve the application on December 10, 2008, for construction of the monopole at the original Mt. Tabor Road site.

Plaintiff filed an amended complaint in lieu of prerogative writs on February 25, 2009. In four counts of the complaint, she alleged that the decision of the Board of Adjustment should be set aside (1) because the applicants had failed to prove "positive criteria" for granting of a use variance since the site was not suitable for a telecommunications structure, (2) because the applicants had failed to prove the "negative criteria" for granting of variances as required by N.J.S.A. 40:55D-70, (3) because the Board of Adjustment should have reconsidered the Planning Board's prior approval of the assisted living facility for the site in conjunction with the present application for a telecommunications facility, and (4) because on remand the applicants' presentation to the Township Council regarding the alternative site was biased and one-sided. The Township Council and mayor were joined as defendants in the amended complaint.

After briefing and review of the record, Judge Bozonelis ruled from the bench on August 31, 2009, that plaintiff had not met her burden of proof on any of her claims and dismissed her complaint. This appeal followed. We previously denied an application by plaintiff for a stay of the approvals and the Law Division's judgment.

Plaintiff argues on appeal that the Board of Adjustment's decision should be reversed because the site is not suitable for the proposed telecommunications facility and the applicants failed to prove the so-called positive and negative criteria required for granting of variances under N.J.S.A. 40:55D-70. Plaintiff emphasizes that the monopole would be located within five feet of the proposed assisted living facility, without adequate vehicular access, and it would present a danger to future residents of the assisted living facility.

Our standard of review is strictly limited. Decisions of zoning boards to grant or deny applications constitute quasi-judicial decisions of municipal administrative agencies. Willoughby v. Plan. Bd. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997); Kotlarich v. Mayor of Ramsey, 51 N.J. Super. 520, 540-42 (App. Div. 1958). They are subject to review in the Superior Court in an action in lieu of prerogative writs, R. 4:69, and the court's review must be based solely on the record before the zoning board. Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 289 (1965).

The determination of a zoning board is presumed to be valid. Id. at 285; Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). The court must determine whether the decision is "supported by the record and is not so arbitrary, capricious or unreasonable as to amount to an abuse of discretion." New Brunswick Cellular v. Bd. of Adj. of S. Plainfield, 160 N.J. 1, 14 (1999); Smart SMR of N.Y. v. Bor. of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1988); Ocean Cty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adj., 352 N.J. Super. 514, 521-22 (App. Div.), certif. denied, 175 N.J. 75 (2002). A court must not substitute its own judgment for that of the board unless there is a clear abuse of discretion. See Cell S. of N.J., supra, 172 N.J. at 82. The burden is on the challenging party to show that the board's decision was arbitrary, capricious, or unreasonable. See Smart SMR of N.Y., supra, 152 N.J. at 327; Kramer, supra, 45 N.J. at 296.

Here, plaintiff has provided as part of the appellate record only Judge Bozonelis's oral decision of August 31, 2009. In that decision, the judge stated that he was adopting his findings made on February 28, 2008, but plaintiff has not provided a record of those findings, as she was required to do under Rule 2:6-1(a). Plaintiff has also not provided either resolution of the Board of Adjustment approving the applicants' proposal, issued on July 11, 2007, and after the re-approval vote of December 10, 2008. Consequently, our review is limited to the summarizing and recapitulation of reasons for denial of plaintiff's prerogative writs challenge contained in Judge Bozonelis's decision after the remand.

We find no basis to reverse that decision on the record presented. The judge applied the correct standard of review and found no grounds in the record before the Board of Adjustment or the Township Council to intervene in their discretionary decisions.

As to plaintiff's additional points - that the Board of Adjustment should have reconsidered the prior approval granted by the Planning Board for construction of an assisted living facility, and that the Township Council allowed the applicants to make a biased, one-sided presentation on remand - plaintiff has not presented legal authority supporting her arguments.

We agree with the applicants and the municipal defendants that neither the Board of Adjustment nor the Township Council had authority to review the decisions of another municipal agency. See Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adj., 154 N.J. 62, 69 (1998); Twp. of N. Brunswick v. Zoning Bd. of Adj. of N. Brunswick, 378 N.J. Super. 485, 490 (App. Div.), certif. denied, 185 N.J. 266 (2005); Twp. of Dover v. Bd. of Adj. of Dover, 158 N.J. Super. 401, 408-09 (App. Div. 1978).

With respect to plaintiff's challenge to the manner the applicants presented evidence about the suitability of the Township-owned site, plaintiff attended the meetings and made no effort to present contrary evidence. Moreover, Judge Bozonelis, who was able to review the record of the proceedings, found that the Township Council had given careful consideration to the potential for locating the monopole on its property but ultimately did not favor the proposal for appropriate reasons.

We conclude that the decisions of the Board of Adjustment and the Township Council have not been shown on the record presented to have been arbitrary, capricious, or unreasonable. The Law Division correctly dismissed plaintiff's complaint in lieu of prerogative writs.

Affirmed.


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