On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3532-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 19, 2011 -- Decided Before Judges Yannotti and Espinosa.
Defendant, the Zoning Board of Adjustment of the Borough of New Milford (Board), appeals from an order entered by the Law Division on January 20, 2010, which reversed the Board's decision to deny an application by plaintiff for site plan approval and certain variances required to construct a wireless communications facility in the Borough. We affirm.
On January 17, 2008, plaintiff filed an application with the Board for preliminary and final site plan approval and certain variances required for the construction of a ninety-foot monopole and related equipment that plaintiff said were necessary to address a significant coverage gap in the wireless telecommunications system in the Borough. The Board conducted several public hearings on the application, and on February 10, 2009, voted to deny the application.
The Board memorialized its action in a resolution dated March 10, 2009. In its resolution, the Board stated that "the overriding residential nature of the neighborhood" where the facility would be constructed obligated plaintiff "to employ and utilize the highest and best means of camouflage of the equipment . . . in an effort to maintain the character and quality of the neighborhood in question." The Board said that plaintiff had only considered two "camouflage options[,]" specifically, a "flag pole" and "faux tree" design. The Board found that plaintiff's "limited analysis" of alternative means of camouflage was "insufficient to prevent the substantial impairment of the zone plan and zoning ordinance in the neighborhood surrounding the site in question[.]"
On April 16, 2009, plaintiff challenged the Board's action by filing an action in lieu of prerogative writs in the Law Division. The trial court considered the matter on December 18, 2009. Thereafter, the court filed a written opinion dated January 7, 2010, in which it concluded that the Board's action was arbitrary, capricious and unreasonable.
The trial court found that plaintiff had established the positive and negative criteria required to obtain a use variance pursuant to N.J.S.A. 40:55D-70(d), and the positive criteria "far outweigh the negative." The court said that denial of the variance was not warranted merely because plaintiff had not used the "most effective means of camouflage" for its facility.
The court entered a judgment dated January 20, 2010, which reversed the Board's decision; granted the variances and site plan approval that plaintiff sought; and allowed the development to proceed upon the issuance of appropriate construction permits. This appeal followed.
The Board argues that the trial court's judgment should be reversed because: 1) plaintiff failed to satisfy its burden of demonstrating that the proposed design for its facility constitutes the best and highest means of equipment camouflage; and 2) the trial court exceeded the scope of its review by ruling on the issue of use variance which had not been decided by the Board.
In our view, these arguments are entirely without merit. We accordingly affirm the trial court's judgment dated January 20, 2010, substantially for the reasons stated by the court in its written opinion of January 7, 2010. We add the following comments.
Here, plaintiff filed an application with the Board seeking certain variances and site plan approval for the construction of a wireless telecommunications facility in the Borough. The trial court noted that, among other things, plaintiff had requested issuance of a use variance pursuant to N.J.S.A. 40:55D-70(d).
The statute provides that a variance may issue "[i]n particular cases for special reasons[.]" Ibid. The statute further provides that no variance may issue thereunder unless it "can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." Ibid.
Although N.J.S.A. 40:55D-70(d) does not require a balancing of the positive and negative criteria, "the need for balancing is implicit in the statutory requirement that the grant of a variance must be 'without substantial detriment to the public good.'" Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 164 (1992) (quoting Medici v. BPR Co., 107 N.J. 1, 22 n.12 (1987)). Indeed, under N.J.S.A. 40:55D-70(d), only a ...