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Omnipoint Communications, Inc v. Zoning Board of Adjustment of the Borough of Rutherford

December 10, 2010

OMNIPOINT COMMUNICATIONS, INC., PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF RUTHERFORD, DEFENDANT-APPELLANT, AND BOROUGH OF RUTHERFORD, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8677-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 20, 2010 -- Decided Before Judges Rodriguez, Miniman and LeWinn.

The Zoning Board of Adjustment of the Borough of Rutherford (Board) appeals from the July 27, 2009 Law Division judgment, rejecting its decision and granting variances and site plan approval to Omnipoint Communications, Inc. (Omnipoint). We affirm substantially for the reasons expressed by Judge Menelaos W. Toskos in his July 27, 2009 written decision.

Omnipoint is licensed by the Federal Communications Commission (FCC) to provide digital mobile telephone services in the New York area. Omnipoint identified a coverage gap in the Borough of Rutherford. After analyzing suitable sites to place antennas or towers, Omnipoint negotiated a lease to erect eight rooftop wireless antennas on a four story residential apartment building located in the single family residential zoning district, R-1. The plan called for disguising the antennas as false or "faux" chimneys.

Rutherford Zoning Code, Article IV, § 131-7A, Table of General Bulk Regulations (Zoning Code), establishes that the maximum building height in the R-1 zone is thirty-five feet or two-and-one-half stories. The proposed building is a non-conforming use because it is four stories and its height is thirty-nine feet, eleven inches tall. The proposed antennas would rise nearly ten feet above the roof to a height of forty-nine feet, ten inches. Therefore, use variances were necessary because wireless telecommunications facilities are not permitted in the R-1 zone; and the proposed antennas would exceed the height limits.

Omnipoint applied to the Board for use variances and site plan approval to construct eight antennas with faux chimney structure. The Board conducted public hearings on March 19, July 8 and September 9, 2008. Omnipoint presented the testimony of five witnesses. Syed Mujdaba, a radio frequency engineer, testified that a telecommunications facility was necessary because there was a "significant gap in coverage." This testimony was corroborated by the introduction of a propagation map, which reflected that areas of Rutherford had insufficient coverage. Mujdaba opined that erecting antennas on the building would prevent "dropped calls" in the area because the building "is close to the central location of the coverage gap." Further, this building was selected due to its higher elevation, which was evidenced by the topographic map.

Regarding alternate locations, Mujdaba testified that Rutherford's commercial zone, B-3, did not contain a suitable location because of its lower elevation. If Omnipoint chose a site in the B-3 zone, it would have to construct a new tower or monopole, with a minimum height of eighty-five to ninety feet.

According to John Colagrande, Omnipoint's expert in civil engineering, the antennas would be encased by eight faux chimneys, which would be two-feet-by-two-feet. These chimneys would be eight inches shorter than the three existing true chimneys on the building. Moreover, the chimneys would "mimic the existing brick facade of the building to make them look as natural as they can to the structure."

Timothy M. Kronk, Omnipoint's expert planner, testified that the faux chimneys would prevent the eight antennas from being visible to the public. Kronk also engaged in the balancing test for the positive and negative criteria set forth in Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 165-67 (1992). He opined that the positive aspects of the proposed use outweighed any visual detrimental impact. The building was particularly suited due to its height, location and elevation. Further, there were not "a lot of options in the area to eliminate the coverage deficiency," as other buildings would require building new towers or monopoles.

Regarding the negative criteria, Kronk opined that the wireless telecommunications use was a "benign commercial use" that possessed none of the traditional negative impacts associated with land development. Specifically, the use would not create noise, glare, odor, vibration or other "noxious characteristics" or require workers on the site. However, Kronk conceded that the use would have a negative visual impact, albeit "de minimis in nature." Thus, the Board could grant the variances without a substantial detriment to the public good.

Daniel J. Collins, an expert in radio frequency emissions and FCC compliance, testified that the proposed antennas would comply with FCC safety standards. Finally, Bob Leavell, Omnipoint's expert in radio frequency engineering, explained that eight antennas were necessary because the technology required two antennas at each corner. He explained that if one antenna did not receive a strong signal the other one would.

The Board presented no expert testimony, but did ask several questions under oath of Borough Construction Official John Uhl. Eleven members of the public expressed concerns regarding ...


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