September 10, 2010
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFF-APPELLANT,
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF LAWRENCE, DEFENDANT-RESPONDENT, AND PHILLIP AND MARIA YANG, AND STEPHEN AND KATHLEEN PARRISH, INTERVENORS-RESPONDENTS.
NEW CINGULAR WIRELESS PCS, LLC D/B/A CINGULAR WIRELESS, PLAINTIFF-APPELLANT,
THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF LAWRENCE, DEFENDANT-RESPONDENT, AND PHILLIP AND MARIA YANG, AND STEPHEN AND KATHLEEN PARRISH, INTERVENORS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-881-08 and L-705-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2010
Before Judges Skillman, Fuentes and Gilroy.
Plaintiffs New Cingular Wireless, PCS d/b/a Cingular Wireless (Cingular) and Cellco Partnership d/b/a Verizon Wireless (Verizon) appeal the judgment of the Law Division upholding the denial of their applications for a use variance to construct a 140-foot-high telecommunications tower on a property currently used as a nursery, which is a nonconforming use of that property. This site is an environmentally protected zone that prohibits cell towers.
The Zoning Board of Adjustment for the Township of Lawrence (the Board) denied plaintiffs' applications because an alternate site owned by the municipality existed in a zone where such towers were permitted as conditional uses. Cingular and Verizon appealed the Board's decision to the Law Division in two separate actions in lieu of prerogative writs. After consolidating the two cases, the trial court affirmed the Board's decision.
Plaintiffs now argue that the decision to deny their applications was arbitrary, capricious, and unreasonable because they satisfied the positive and negative criteria required to grant a variance and there were no other suitable alternate sites available. They contend that the Law Division misapplied the time of decision rule to consider post-hearing factual developments regarding a bid award for the municipal site.
We agree with plaintiffs' arguments concerning the time of decision rule and therefore reverse. The trial court misapplied the time of decision rule thereby permitting the Board to deny plaintiffs' applications based on the alleged availability of the Carter Road property, a site that was not reasonably available to plaintiffs during the time their applications were pending before the Board. We thus remand this matter for the Board to reevaluate plaintiffs' applications without consideration of the Carter Road site as an alternative available site for plaintiffs to construct their telecommunications tower.
We derive the following facts primarily from the evidence presented before the Board.
I. Technical Requirements
On October 17, 2005, plaintiffs filed an application for a use variance to construct a 140-foot monopole cell tower at 3730 Lawrenceville Road, also known as Route 206, in Lawrence Township. Plaintiffs also sought related bulk variances from local zoning provisions regarding impervious coverage, front and side yard setbacks, and building height. Nextel Communications of the Mid-Atlantic, Inc. (Nextel) and Sprint Spectrum L.P., Sprint PCS (Sprint) subsequently joined as co-applicants.
On May 31, 2006, the Board determined that the application was barred by the doctrines of res judicata and collateral estoppel because a prior application filed by Verizon to construct a 120-foot monopole at the same site had been denied on April 12, 2000. That denial had been upheld by both the Law Division and the Appellate Division. Cellco v. Bd. of Adj. of Lawrence Twp., No. A-4696-00 (App. Div. June 19, 2002). The Board memorialized this decision in a resolution adopted on July 19, 2006.
On August 30, 2006, plaintiffs filed an action in lieu of prerogative writs requesting that the court direct the Board to consider the application on its merits. The court granted plaintiffs' applications.
During the reconsideration hearing, plaintiffs presented evidence before the Board in support of their applications over the course of seven hearing days conducted between March 21 and December 19, 2007. The site where plaintiffs proposed to construct the telecommunications tower is a 7.569 acre property, which is owned by Peterson's Nursery and Garden Market, Inc. (Peterson's). Peterson's operated a landscaping business, nursery, and garden center at this location. Two commercial billboards were located on the northern end of the property along Route 206. The property was surrounded by residential lots, except to the south and west where the Bristol Myers Squibb campus is located.
The nursery and the billboards are nonconforming uses in the EP-1 environmental protection zoning district, the zoning scheme applicable to the Peterson's property. The EP-1 district permits single-family detached homes, agricultural and municipal uses, farmland, open space, vistas, large lots, low density development, and septic systems. The zone was intended to protect natural resources and flood plains and to maintain "as much open space as possible." Cell towers are not permitted in this zone.
Cell towers were permitted as a conditional use in the RD-1 zone. However, the only properties in the RD-1 zone at the time of plaintiffs' applications were the Bristol Myers Squibb campus and a Township property referred to as "the Carter Road site."
Plaintiffs presented a number of witnesses with an expertise in the field of telecommunications who testified concerning the technical aspects of the applications.
Dominic Villecco was presented as a radio frequency design expert. He testified that each of the applicants experienced coverage gaps in their service areas. Specifically, Verizon had a three mile long by four mile wide gap of "unreliable" coverage along Route 206 that spanned from the Princeton Borough border to a site at the Lawrenceville School south of the proposed location. The proposed location was inadequate to ameliorate this gap because it would only cover approximately a two-mile radius of that gap, requiring Verizon to pursue additional sites to address the coverage gap between Princeton and the south end of Lawrenceville along Route 295.
Nextel, which operated on similar frequencies to Verizon but with different technology, had "adequate vehicular coverage" in the area, but maintained "holes" in its service and "no in-building penetration." The proposed tower would "help fill in their vehicular coverage, as well as provide additional in-building coverage in this part of Lawrence Township."
Although Sprint acquired Nextel, the two companies continued to operate as two separate networks because their technologies were incompatible. Sprint had a "much larger gap" in the area because the frequencies that it used permitted its signal to travel only half of the distance of other carriers' signals. The proposed tower would allow Sprint to "cover a significant portion of this gap."
Cingular experienced similar "inadequate performance" in this area. By the time Villeco presented his initial report, Cingular had acquired AT&T. However, even with an integrated network, Cingular/AT&T (known thereafter as AT&T) experienced "inadequate performance" in the area because of a four percent dropped-call rate.
According to Villecco, however, the benefits of the proposed tower went beyond filling the coverage gaps of the various cellular providers. If located at this site, the tower would increase each carrier's capacity by 400 to 500 calls and significantly improve the service provided by surrounding towers by covering "the fringes" of their service areas where calls were more likely to be dropped or where callers experienced access failures.
Mark Damiano testified as plaintiffs' site engineer. He explained that the monopole could accommodate five carriers. Standing approximately 145 feet tall, the pole would be disguised as a tree "in an attempt to conceal the pole and the antennas." It would be located 173.83 feet from the rear property line, 154 feet from the side property line, and 447.49 feet from the front property line on Route 206. Four arrays located at ten foot intervals from the top of the pole would each hold approximately twelve antennas, one foot wide and five feet high.
After removing five existing trees, the site would also accommodate: four equipment sheds housing radios, batteries, and other wireless communications equipment; a 2700 square foot, gravel-covered compound, screened by a wooden fence and landscaping; and a 750-square-foot parking area for four cars, to meet the requirements of the local zoning ordinance. In response to concerns raised by public safety officials, the existing driveway would be widened from ten to eighteen feet to provide emergency access to the property.
Although the existing front and side yard setbacks and the amount of impervious coverage violated the Township's bulk requirements, the addition of the gravel lot would only increase the lot's impervious coverage area by less than one percent, to a total of 28.8 percent. Damiano did not address, however, the amount of impervious coverage that would be added if the driveway was widened. He noted, however, that the applicants believed that the eighteen foot wide driveway required by the local zoning ordinance was "overly wide," compelling the removal of more trees, thus adding "a considerable amount of additional impervious area."
Daniel Collins was the last witness plaintiffs presented to address the technical aspects of their applications. As an expert in the field of electromagnetic emissions, Collins testified that the level of emissions from the proposed tower of 0.4375 percent was 215 times below the maximum exposure limit established by the Federal Communications Commission (FCC).
The following witnesses addressed the economic impact of erecting a telecommunications tower in a residential area, as well as the suitability of the tower from a planning perspective.
John Gillooly testified as plaintiffs' real estate appraisal expert. His analysis of property values at a comparable location in Princeton Township showed that the existence of a cellular tower and its proximity to residential property had no effect on the appreciation rate of surrounding residences. He reached the same result in similar studies he conducted in other parts of the state.
William Masters testified as plaintiffs' planning expert. According to Masters, the applications met the positive criteria for a use variance because the location was particularly suited for a wireless telecommunications facility. Specifically, the site was technically able to accommodate four carriers and it was "ideally situated to fill the gaps in coverage" for all four carriers. The site was located near the major traffic corridors of Route 206 and Province Line Road. The property was already occupied by a commercial, nonresidential use, and the "large wooded lot" of 7.569 acres afforded "a significant tree buffer" between the rear of the property and the adjoining residential uses to the south. Finally, the four carriers were licensed by the FCC and provided "modern, state-of-the-art wireless telecommunications," thus satisfying the requirement that the use serve the general welfare.
As to the detrimental effect criterion, Masters indicated that the use was "very benign" from a land use perspective because it involved "an unmanned, unoccupied facility" that would be monitored continuously from a remote location and visited only once every four to six weeks. Although a variance for a second principal use was needed, Masters testified that it was common for communications towers to co-locate on lots that had pre-existing uses. Further, Masters characterized the increase in the amount of impervious lot coverage as "de minimus."
In Master's opinion, the "primary focus" should be "the potential visual impact." Although the proposed structure would be visible "without doubt" from the adjoining neighborhood, he opined that it "would not have a significant detrimental impact on the visual environment." In support of his opinion, Masters submitted computer-enhanced photographic simulations of the proposed tree pole installation, which he created from photographs from the crane that had been situated on the site for the radio frequency tests conducted on September 13, 2005. These photographs showed views from various neighboring streets. Masters also reminded the Board that it was entitled to impose reasonable conditions on the use, including that the pole be disguised as a tree and that a landscape buffer be installed around the equipment compound. In light of this evidence, Masters opined that the positive criteria outweighed the potential detriment; thus, the relief could be granted without substantial impairment to the Township's zoning plan and ordinance.
Plaintiffs' applications also satisfied the conditional use standards set forth in the Township's Ordinance § 430(C), permitting communications towers as conditional uses in any non-residential district. The height of the proposed monopole was the lowest feasible for the intended purpose. The pole could be situated to meet the setback requirement of 110 percent of its 145-foot height. It complied with the radiation emission standard and a landscape buffer could be installed around the equipment. The requisite number of parking spaces were provided. Lastly, except for being nine inches beyond the maximum height permitted, the size of the accessory structure was otherwise compliant.
II. Site Availability
Claire Dinardo testified as plaintiffs' site acquisition specialist. She had been searching since 2000 for a suitable site within the geographical boundary to remedy plaintiffs' coverage gap problem and the unreliable signal strength in the area. As a threshold issue, the potential site had to be larger than five acres because local ordinances required a setback of 110 percent of the monopole's height. No other tall structures existed in the area to allow plaintiffs to co-locate a cellular tower.
Dinardo reviewed tax maps, local ordinances, and aerial photographs to compile an initial list of twenty-three acceptable properties. Although twenty-one of the sites met the radio-frequency requirements, none of the owners except Peterson's expressed any interest in having a wireless facility on their property. The owner of the only property in the area that was zoned to allow wireless communications facilities were initially receptive to plaintiffs' inquiries. Dinardo contacted the corporate owners of that property in 2004 and 2006. However, the owners rejected plaintiffs' proposal.
Dinardo also provided detailed testimony on the applicants' efforts to obtain the consent of owners of other potential sites, including the large commercial properties owned by Bristol Myers Squibb and the Jasna Polana Golf Club. In 2003, plaintiffs' representatives met with the Township to discuss the possibility of locating the facility on Township open space, including block 6601, lot 1.02, located on Carter Road (the Carter Road site). In a letter addressed to plaintiffs' attorney dated December 19, 2003, the Township Manager made clear that the municipality "was not interested in leasing space for wireless communications facilities" on the Carter Road property.
At the March 28, 2007, hearing to consider plaintiffs' applications, Board members questioned whether the Board should contact the Township regarding the availability of the Carter Road site. At one point in the discussion, the Board's Chairman asked plaintiffs' attorney if he knew the reasons for the Township's decision not to make the Carter Road site available for this telecommunications facility. In response, plaintiffs' attorney indicated that a title search of the Carter Road property revealed that the property had been donated to the Township by Bristol Myers Squibb with a covenant that restricted its use to a fire substation.
As the discussion on this issue continued, the following colloquy occurred between one of the members of the Board and the Board's attorney:
[BOARD MEMBER:] I would suggest that this Board should pursue revisiting [the availability of the Carter Road site] with the Township and see what the feeling is now, because I can't imagine we're going to build a fire substation up there in that area of the town. I don't think there is enough population up there to warrant it. So times may have changed, and the whole feeling may be different about the use of that property, and I think we should pursue that, see if, in fact, that's viable.
[BOARD ATTORNEY:] And . . . I'm not suggesting that the Board not do that if they're inclined to do so, but this applicant still needs to put witnesses on.
[BOARD MEMBER:] Oh, absolutely.
[BOARD MEMBER:] I think the Board might reconsider that that might be a viable option.
[BOARD ATTORNEY:] I think we need to hear from the radio frequency expert, and then you may want to revisit that thought. We have to get the whole picture here, I think, before the Board is actually, you know, going to start measuring sites.
[BOARD MEMBER:] Right, I understand that.
I understand that. I'm just putting into the Board's mind that we need to keep that in the background as some kind of a viable option that might be –
[BOARD CHAIRMAN:] Duly noted.
On May 8, 2007, during the pendency of the hearings, Villecco, plaintiffs' expert witness on radio frequencies, conducted a radio-frequency test for the municipal property located on Carter Road at the rear of the Bristol Myers Squibb campus. He reported his findings and conclusions to the Board at the August 15, 2007, hearing. Villecco positioned a crane "more or less across the street" from the site because the existing trees and power lines prevented access to the particular site. Using the crane, he tested transmissions for cellular and PCS*fn1 frequencies of 800 and 1900 megahertz at 175 feet. He also conducted similar tests at 140 and 110 feet to simulate the maximum and minimum heights for the antenna locations. Although the Carter Road site was "about [twenty-five] feet higher above sea level than Peterson's," the height of the trees in the area made this difference inconsequential.
Villecco found that at 175 feet, the cellular frequencies could reach Route 206 and provided "some coverage along Princeton Pike." Thus, the tower would serve "most" but "not exactly the same area" that would be covered by the tower at Peterson's. Additionally, he found that the PCS frequency transmissions were adequate on Route 206 but "marginal on Princeton Pike." At 140 feet, the cellular frequencies at the Carter Road site would "cover a fair amount of the area that Peterson's covers" in that the signals reached Route 206, but the signal would "barely make it" to Princeton Pike. The PCS transmissions were "adequate" overall, but "start to have difficulties" along Princeton Pike. At 110 feet, both types of frequencies could reach Route 206, but provided "no coverage" for Princeton Pike.
Based on these findings, Villecco concluded that, because the Carter Road site was three-quarters of a mile west of Peterson's, it would provide coverage for some areas to the west that were not covered by Peterson's and it "would fill most of the area that Peterson's covers." However, if the signal from the antenna was lower on the pole, it would not reach Princeton Pike. Villecco thus opined that the "absolute minimum height" for any antenna on the Carter Road site would have to be 140 feet. Assuming there were four carriers on a pole, the antennas would have to be placed at 175, 165, 155, and 145 feet. In his opinion, a tower at the Carter Road site would eliminate the need for a site at Peterson's because "they overlap too much" and "cover a lot of the same area." In response to questions from Board members, Villecco also indicated that in conjunction with either Carter Road or Peterson's, an antenna could also be placed on an existing Township-owned ecological center which had a 180-foot tower, to improve coverage on Princeton Pike.
Despite the Board's apparent interest in the Carter Road site, plaintiffs' attorney reminded the Board that, regardless of plaintiffs' request four years earlier, the Carter Road property remained unavailable. Specifically, plaintiffs' counsel emphasized that the municipality had not taken any action to invite or solicit bid proposals for the rental of this site as a location for a telecommunications facility and monopole.
Even though there was no evidence indicating that the Carter Road site was available, one of the professional staffers for the Board asked Villecco at the August 15, 2007, hearing whether the Carter Road site met most, if not virtually all, of plaintiffs' technological needs. This prompted the following exchange between plaintiffs' counsel and the Board's attorney:
[PLAINTIFFS' ATTORNEY:] At this point I have to object to the form of the question. This is all hypothetical, because the Carter Road site is a municipal site that has not been put out to bid. It might be zoned to allow [the proposed use], but it's never been put out to bid. As the Board may know, because I introduced to you previous testimony, that bid was requested over four years ago and was never issued.
So in a perfect world, maybe we could answer the question. But municipal properties can't be leased without a bid, and we're just at a loss on that issue.
[BOARD ATTORNEY:] Well, I mean, for the record I think there was some question about that property and limitations on the use of that property. That property was donated to the Township for emergency services purposes.
[BOARD CHAIRMAN:] With a restriction.
[BOARD ATTORNEY:] The language is less than clear. But if I understand what these carriers are all proposing, and let me make the -- let me confirm this, too. If the Township site were to be utilized, the carriers would allow for emergency service signals to emanate from that site. I'm assuming that that –
[PLAINTIFFS' ATTORNEY:] Correct. We've always made that clear. There would be room made available to emergency facilities, police, . . . fire, at agreed upon locations that . . . would not interfere with the signal. It's done numerous times, numerous places, on numerous facilities.
But yes, . . . and I'm not meaning to get into a debate over the issue. That's correct, there were some title restrictions on this property, and that was for the Township to determine whether they could even put the property out to bid. But the point I'm trying to make is that, until it is, we can't consider [the Carter Road property] as an available site.
[BOARD ATTORNEY:] Correct.
At this point, the same Board member that had made her views known two months earlier at the March 2007 hearing, made the following statement:
[BOARD MEMBER:] I would like to pursue that with [the Board's attorney], if I might. What avenues could we, as a Board, take to approach [the Township] Council to see if they would consider putting [the Carter Road property] out to bid for this facility and would get out of Peterson's once and for all, perhaps, and that actually would cover Lawrence [Township] better that the Peterson['s] site, which is on the border of Princeton?
They're telling us we have to have more towers yet. Now, we've already had ten years, you're right, ten years of battle over this one, and if that Carter Road [site] is available and Carter [Road] and the ecological [center] would cover our township better, we might not have to go through this once again. Now, what are --what avenues can we pursue?
[BOARD ATTORNEY:] I think what your professionals on this Board have been trying to do is explore this very idea. I mean, there were -- Mr. Villecco testified to certain things, and it prompted the professionals, who advise you, to peel back another layer of the onion. Quite honestly, that's why the May 8th test was conducted with the knowledge of the Township manager.
What we've been trying to do is collect information so that the [Township] Council is not just shooting from the hip, but instead it has accurate information and, quite honestly, [addressing plaintiffs' counsel] I'm going to ask you if you couldn't expedite the preparation of this transcript so that it could be shared, this testimony could be shared with the Council members.
[PLAINTIFFS' ATTORNEY:] Sure.
The Board also considered the testimony of a number of other professional witnesses called by area residents who objected to the applications. Objectors Phillip and Maria Yang and Steven and Kathleen Parrish were residents of Tomlin Drive. The Peterson's site proposed for the tower is located on a ridge that overlooked Tomlin Drive to the south. The tower would be 400 to 600 feet from the closest homes at this location. The elevations of the Tomlin Drive properties were approximately fifty to seventy feet below the site.
The objectors presented the testimony of George Szymanski, a licensed professional planner.*fn2 Szymanski estimated that over half of the tower would be visible above the tree line because the Peterson's site rises to 317 feet above sea level and the tower would be eighty feet above the existing tree line. He opined that the tower would be "totally visible" to all of the lower-lying properties up to 3600 feet away in the valley below the ridge off Province Line Road and extending to the Princeton Pike. According to Szymanski, one of the purposes of the EP-1 zone is to maintain views. He projected that the monopole would have a large visual impact on the surrounding properties because the area was "not an evergreen forest" where the tree-pole would "fit in with the background visual environment." Rather, the backdrop was of "a deciduous tree canopy" and the tree-pole was "going to be something that sticks right out on top." He thus concluded that the tower would be "an intrusion into the ambiance of this area." This, according to Szymanski, would have "a real effect on people that live in this area," which "alone" was "an impairment of the intent and purpose of the zone plan."
Additionally, Szymanski opined that the proposal would further expand the nonconforming use. Szymanski observed that all of the nursery's operations, including truck and customer traffic, were oriented to Route 206. The proposed tower, in his opinion, would bring the use of the nursery's property "right into the face of the residents." Szymanski concluded that the proposal did not satisfy the balancing test because the negative impacts outweighed the need to place a tower on the nursery site, especially when there was another available site on Carter Road. Szymanski thus recommended that the tower be located on the Township's site because it was available*fn3 and zoned for cell towers.
Robert Heffernan testified as the objectors' real estate appraisal expert about sales comparison studies derived from data collected by his firm. The studies examined the impact of communications towers on real estate values for residential subdivisions in Warren, Bernards, Readington, and Randolph Townships. According to Heffernan, the studies showed that homes with direct or partial views of towers, monopoles, or high tension power lines had sale prices of between eight percent and 18.29 percent less than homes without similar views. In Heffernan's opinion, there was "no doubt" that the proposed tower would have a negative affect on the value of the properties. He estimated that the amount would be at least ten percent, but "it probably won't be more than twenty." Heffernan was also critical of the studies performed by plaintiffs' real estate expert witness.
The Board's radio-frequency consultant, Christine Malone, testified that her studies conformed with plaintiffs' witnesses' testimony that there was "a sizeable gap" in "PCS in-building coverage and some in-vehicle coverage" for the area's main thoroughfares of Route 206, Province Line Road, and Princeton Pike. In her opinion, however, coverage gaps would remain even with the addition of the proposed site. Malone concluded that the Carter Road site, with the addition of the ecological center and possibly a site in Princeton, would provide "a more comprehensive solution" to address the coverage gaps. The Peterson's site and the ecological center covered "a lot of the same area," but would leave areas to the north and west uncovered. In contrast, the Carter Road and the ecological center sites had less duplication and would cover an un-served area to the north and west. According to Malone, the tower on Carter Road would have to be higher to reach the main thoroughfares of Route 206 and Princeton Pike. The Carter Road site would need two unipoles, or flagpoles, that would allow for the placement of multiple carriers at a greater height. Although the sites were "comparable," Malone opined that "neither site covers a hundred percent of the gap."
On December 19, 2007, at the conclusion of seven days of hearings conducted over a nine-month period, the Board's attorney presented a letter from the Township manager, Richard Krawczun, to the Board. This letter, also dated December 19, 2007, reads as follows:
Dear [Board Attorney]:
Please be advised that at the Lawrence Township Council meeting of December 18, 2007, there was discussion regarding a process of public bidding for lease of Township owned land for placement of two unipole cell tower installations. The specific site is Carter Road, Block 6601, Lot 1.02.
As Township manager, I recommend that the parcel be offered for use as a cell tower location and that the Administration commence development of bid specifications. The specifications would provide detail for development of plans for the site. The members of the Township Council concurred with the recommendation to proceed.
In transmitting the letter to the Board members, the Board's attorney indicated that he thought this was "very relevant in the sense that we are now being told that there is an alternative site." The Chairman of the Board then remarked, "[t]herefore, there is no need for a variance," to which the Board's attorney responded: "[r]ight, at that site." Plaintiffs' counsel indicated that he had no objection to the letter being marked as a Board exhibit. He cautioned the Board, however, that the letter should speak for itself without further comment or elucidation because the author of the letter was not present nor subject to cross-examination.
In a resolution dated December 19, 2007, the same day the letter from the Township manager was written, the Board found that plaintiff's applications failed to satisfy the positive criteria because "an alternative site owned by Lawrence Township on Carter Road . . . is available and can address the gap in service." Although the resolution also indicated that plaintiffs had not satisfied the negative criteria as well, it is clear that the driving force behind the Board's denial was the alleged availability of the Carter Road property as an alternative to the Peterson's site.
The Township did not issue bid specifications for the lease of the Carter Road property as a site for telecommunication facilities until January 12, 2009, more than two years after the Board denied plaintiffs' applications. Among the plaintiffs in this appeal, only Verizon submitted a bid. The bids were opened on February 3, 2009. Only two bids were submitted; Verizon was the high bidder. The Township had not entered into a lease contract for the property as of February 27, 2009, the date these cases came before the Law Division for oral argument.
The Township Council revised the bid specifications and again requested bids for the lease of the Carter Road property. These re-bids were opened on March 31, 2009. That same day, the Board's attorney notified the trial judge and counsel that the Township Council would consider the bids for award at its next meeting on April 22, 2009. The trial judge allowed the parties to supplement the record before she issued her opinion. On April 1, 2009, the day after the bids were opened, the court issued a written opinion affirming the Board's decision and dismissing the complaints. Although the court's written opinion reviews the entire record and considers the other factors found by the Board for denying plaintiffs' applications, the principal reason underpinning the court's decision to affirm was the availability of the Carter Road property.
The court rejected plaintiffs' arguments that the existence of the Carter Road site was irrelevant because no bids had been accepted when the Board denied the applications and their substantial investigation of alternative sites rendered the availability of the Carter Road site "a non-issue." In the court's view, the Board could not ignore the Township's apparent intent to lease the property.
The judge rejected as "unfounded" the applicants' arguments that they had relied on the Township's representations that Peterson's was the only available site and now would experience "extreme hardship" if required to submit to another application process for the Carter Road site. Despite the record showing otherwise, the court found that the applicants had been on notice since the second hearing that Township representatives considered the Carter Road site to be a viable alternative.
Our analysis will focus only on the Board's consideration of the ostensible availability of the Carter Road property as a suitable alternative site for the placement of plaintiffs' telecommunications facility. We limit our focus in such a manner, because we are satisfied that the Board's improper consideration of this site irreparably tainted its decision to deny plaintiffs' applications. Thereafter, the trial court's misapplication of the time of decision rule, as a means of validating the Board's decision, compounded this error and served only to deny plaintiffs their right to receive a fair consideration of their applications.
The record shows that plaintiffs repeatedly attempted to obtain the right to use the Carter Road property as a site for their telecommunications facilities long before they filed their applications regarding the Peterson's site. The Township's response was unequivocal: the Carter Road property was not available because its use was deed-restricted to a fire substation.
Plaintiffs thus filed their applications under the reasonable belief that the Carter Road site was not available to them. When, in the course of hearings, members of the Board referred to the Carter Road property as a possible alternative site, plaintiffs' counsel advised the Board of the Township's position and emphasized that the Township had not taken any steps to make the Carter Road site available. Specifically, the Township had not prepared and published bid specifications for the rental of the property to house telecommunication facilities, nor taken any other official action indicating the potential availability of this site. The Board's attorney concurred with plaintiffs' counsel's legal assessment and reminded the Board that it had to decide the applications without consideration of the Carter Road property.
Despite this, the Board requested that plaintiffs dispatch their telecommunications expert to conduct a feasibility study of the Carter Road site. Plaintiffs complied with this request in good faith, while at all times making clear to the Board that the Carter Road property was not a legally available alternative site. The applications thereafter proceeded to finality without any concrete indication from the Township that its position on the availability of the Carter Road property had changed.
At the last hearing date on plaintiffs' applications, the Board's attorney produced a letter from the Township's manager indicating, for the first time, that at a meeting of the Township Council held on the previous night, "there was discussion regarding a process of public bidding for lease of Township owned land for placement of two unipole cell tower installations." (Emphasis added.) The Board then voted unanimously to deny plaintiffs' applications, using this cryptic unofficial statement as the principal basis for its decision.
On these facts, the Board's decision cannot stand. This eleventh hour communication from the Township's manager was legally meaningless. The letter does not refer to or mention any official action taken by the council. As the emphasized passage from the letter shows, the council merely "discussed" the possibility of placing the Carter Road property out to bid.
The manager concluded by stating that he "recommends that the parcel be offered for use as a cell tower location." This in no way made the site available to plaintiffs or any other member of the public. Indeed, the council did not officially adopt guidelines for accepting bids on the Carter Road property until more than two years after the Board's decision denying plaintiffs' applications. In short, this letter should have played no role in the Board's analysis of plaintiffs' applications.
We therefore hold that on the night the Board voted to deny plaintiffs' applications, the Carter Road property was not available as an alternative suitable site to house telecommunications facilities, including, of course, the proposed 145-foot-high telecommunications tower. The Board's decision to deny plaintiffs' applications based on the alleged availability of the Carter Road property is therefore capricious, arbitrary, and unreasonable. See Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002).
We turn next to the trial court's decision to uphold the Board's denial by invoking the time of decision rule. Under the time of decision rule, an appellate court will apply the statute or municipal ordinance in effect at the time of its decision in those instances where the legislature intended the rule to be applied retroactively to pending cases. Kruvant v. Mayor and Council Twp. of Cedar Grove, 82 N.J. 435, 440 (1980). The rule has been applied to permit a municipality to change its zoning ordinances, even in direct response to a pending or decided land-use application. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378-79 (1995). The rule allows the court to implement current legislative policy. Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 235 (1994). Application of the rule requires that a court equitably balance the municipality's zoning interests against the developer's degree of reliance on the previous law and its vested rights. Ibid.*fn4
Here, the trial court misapplied the time of decision rule by considering factual events that transpired long after the Board's decision denying plaintiffs' applications. Specifically, the court permitted the Board to supplement the record by including bid guidelines adopted by the Township council in March 2009, more than two years after the Board decided to deny plaintiffs applications. Using these post-decision events, the court concluded that the Board could not ignore the council's determination that it was in the public interest to construct the tower at the Carter Road site.
The Township manager's letter was not the equivalent of an officially sanctioned change in the municipality's position concerning the availability of the Carter Road property. The court's decision, however, treated the letter as such and as a result, validated the Board's inappropriate consideration of the Carter Road property as an ostensibly available alternative site.
In this appeal, plaintiffs request that we excise from the Board's decision any consideration of the Carter Road property, reverse the trial court's ruling, and grant their applications as a matter of law. Although we are keenly aware that plaintiffs have been trying to obtain zoning approvals for this telecommunications project for at least the past seven years, we cannot grant the relief they seek without usurping the Board's statutory role and authority under N.J.S.A. 40:55D-70. The Board's decision denying plaintiffs' applications is inextricably linked to and predicated on the alleged availability of the Carter Road property. The only way to untangle this adjudicatory web is to remand for the Board to review de novo plaintiffs' applications based on the record developed but without consideration of the Carter Road property as an alternative site.
Reversed and remanded. We do not retain jurisdiction.