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Cellco Partnership v. Zoning Board of Adjustment of the Township of Lawrence

September 10, 2010

CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFF-APPELLANT,
v.
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,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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."

A.

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).

B.

The following witnesses addressed the economic impact of erecting a telecommunications tower in a residential area, as well as the suitability of ...


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