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T-Mobile Northeast, LLC D/B/A T-Mobile v. Township of Cherry Hill Zoning Board of Adjustment

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 24, 2011

T-MOBILE NORTHEAST, LLC D/B/A T-MOBILE, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF CHERRY HILL ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4554-07.

The opinion of the court was delivered by: Cuff, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 24, 2010

Before Judges Cuff, Payne and C.L. Miniman.

The opinion of the court was delivered by CUFF, P.J.A.D.

Plaintiff T-Mobile Northeast, LLC d/b/a T-Mobile (T-Mobile) appeals from an order dismissing its complaint in lieu of prerogative writs, which challenged the denial of its application for site plan approval and a bulk variance. We reverse.

T-Mobile is in the business of wireless telecommunications. On April 5, 2007, T-Mobile presented an application to defendant Township of Cherry Hill Board of Adjustment (Board) for permission to construct a 130-foot monopole with nine communication antennas on a 10-by-20-foot concrete pad, and equipment cabinets at the base of the monopole. All would be enclosed in a 50-by-50-foot fenced compound. The property on which the monopole and associated equipment would be constructed contains a three-story, 83,400 square foot commercial storage facility, a 7500 square foot restaurant, and a 3030 square foot fast food restaurant. The planning board had recently approved a site plan amendment that permitted a change from the fast food restaurant to a 5280 square foot bank. The property is located in the B-3 (Shopping Center Business) zone on State Highway 80 between State Highway 41 (Kings Highway) and a jughandle. T-Mobile proposed to place the equipment in the left rear corner of the property.

A telecommunications tower and antennas are permitted in the B-3 zone only as accessory uses. The application sought use, height and setback variances, and minor site plan approval.

The application proceeded on a bifurcated basis. The Board considered only the use and height variances and granted both on May 17, 2007.*fn1 The Board imposed several conditions on the use variance, including:

5. The tower and the antennas must be a neutral color to minimize the visual impact on the site and surrounding properties.

6. [T]he submission and approval of an acceptable site plan, bulk variances and design waivers.

7. Any proposed site plan must comply with the conditions as set forth in the Use Variance granted by the Zoning Board on June 24, 2004 and Preliminary and Final Site Plan approvals granted by the Zoning Board on August 5, 2004, as well as the Amended Preliminary and Final Site Plan approved by the Planning Board on January 16, 2007.

8. Any proposed site plan must provide for at least 33% open space.

9. The Applicant will revise the plans to satisfactorily address the comments of the Zoning Board Engineer . . . dated March 28, 2007, and the comments of the Department of Community Development in its review letter dated March 28, 2007.

10. All agreements and representations made by the applicant as set forth at the hearing in this matter and/or contained in the "Whereas" recital paragraphs of this Resolution, shall be fully satisfied by the Applicant.

These agreements and representations included the absence of signs or lighting and a limit on tree removal.

T-Mobile proceeded to present its application for site plan approval and bulk variance (setback) to the Board. The T-Mobile cell tower and equipment required a bulk variance, N.J.S.A. 40:55D-70c, because the applicant sought to locate its project sixty-five feet from a jughandle connecting Route 70 and Kings Highway, but the ordinance required 195 feet from a highway right-of-way. It sought the variance based on hardship, N.J.S.A. 40:55D-70c(1), and special reasons, N.J.S.A. 40:55D-70c(2).

At the commencement of the June 21, 2007 site plan hearing, T-Mobile presented revised photo simulations of the pole with flush mounted antennas and additional photo simulations with the equipment required by additional carriers or co-locaters.*fn2 This design differed from the design offered at the May 2007 hearing. T-Mobile produced the latter photo simulations at the request of the Township planners.

Addressing the setback variance, the civil engineer presented by T-Mobile testified that there were two alternate locations on the site where the cell tower facility could be located. One location was in the front parking lot of the storage facility. This location would not require a setback variance. The engineer also identified another location, closer to the storage facility and farther from the roadway. This location also required a setback variance but not to the degree required by T-Mobile's preferred location. The engineer testified, however, that this alternate location might reduce the number of future co-locaters due to restricted access to the tower.

Brian Seidel, the planner presented by T-Mobile, testified that the only undeveloped areas of the property were the perimeter yards. He explained that T-Mobile proposed to place its wireless facility in the rear yard of the property. He testified the facility is screened by the commercial buildings on the property and on the adjacent property. He stated the base of the tower would be very well screened because the proposed location was lower than the adjoining jughandle roadway and the existing vegetation would minimize any view of the base of the facility.

A representative of the owner of the site acknowledged the proximity of the ramp from Route 70 to Kings Highway to the proposed tower, but emphasized that the proposed location obscured the facility from passersby. He also stated that there was no other location on the property for the tower that would not interfere with existing operations.

David Benedetti, the Director of Community Affairs for the Township, addressed several items related to the site plan and setback variance. In the course of his report to the Board, he related that the purpose of the 195-foot setback requirement. He stated:

And also, I think, just so that the Board is aware, that the 195 [foot] setback was placed in the ordinance for aesthetic purposes because the Planning Board and Zoning Board has heard numerous engineers testify there is no real fall zone for a tower where there is a lattice tower or a monopole. It really just kind of bend[s] in the middle and just collapse[s].

It was an intention to have them as far back off the road as possible, particularly internal highways of the municipality, which is where most of the areas that are identified for allowing cell towers are located.

In its July 19, 2007 resolution denying the setback variance and the site plan, the Board emphasized the extent of the requested setback relief, the piecemeal consideration of the development on this property due to the existing development and the failure of the owner to anticipate this use, and the elimination of mature trees to allow installation of the facility.

T-Mobile filed a complaint in lieu of prerogative writs to challenge the Board's action. The Law Division judge upheld the July 19, 2007 denial. T-Mobile filed an appeal in this court. Following a civil appeals settlement conference, the matter was remanded to the Board for further consideration of an alternate design for the tower offered by T-Mobile.*fn3

When this matter returned to the Board on December 18, 2008, T-Mobile proceeded with a flagless, flagpole design for the tower. In addition, T-Mobile reduced the area occupied by the wireless facility from 50-by-50 feet to 20-by-30 feet. This reduction eliminated the need to remove any trees. In addition, T-Mobile proposed to increase the vegetative buffer. Once again, the professional engineer presented by the applicant identified an area in the front parking lot of the storage facility where the tower and its equipment could be located in conformity with the setback requirement. He also discussed locating the tower facility in the rear parking area of the storage facility. He noted, however, that this location might restrict the turning radius of vehicles using the storage facility.

At this meeting, T-Mobile also suggested the tower could be constructed to allow future expansion from 130 to 150 feet. Such an expansion could accommodate additional co-locaters and possibly avoid construction of other cell towers. On the other hand, a 150-foot tower would require a 225-foot setback and exacerbate the already substantial deviation from the setback requirement.

T-Mobile also presented another witness, who was a planner and landscape architect, who noted that 67% of the perimeter of the property fronts on a street. He reiterated the opinion of the professional engineer that the only location on the property that conformed to the setback requirement was in the front parking lot of the storage facility, closer to Route 70 and more visible to the occupants and users of the development and the community because the tower facility would not be screened by the storage facility. The planner also read objections to the conforming location by the owner of the development and an occupant.

In addressing the c(2) or "good planning" variance, the planner opined that the requested setback variance would enhance the visual environment because the ground level portion of the facility would be substantially screened from occupants and users of the storage facility, bank, and restaurant and from passersby.

Once again, on December 18, 2008, the Board voted to deny the site plan application. In its February 5, 2009 resolution, the Board found the monopole and its compound could be seen from Kings Highway, and it would have more than a minor visual impact due to its location "right on Kings Highway." The monopole and its compound could be located in an area on the site that did not require a variance. The Board also found that the objections expressed by other tenants at the site to the location in the front of the parking lot of the storage facility did "not meet [the] criteria for a Bulk 'c' variance."

The Board also found that the original developer of the site initially proposed but withdrew a cell tower from the development plan. The Board opined that a cell tower should have been discussed as part of the original development plan. The Board explained, "[t]he location of a monopole . . . on the site should have been dealt with at the original use variance [hearing] for the development of the site . . . therefore there is no hardship on the site." Moreover, the tower could be placed on other locations within the property; therefore, T-Mobile could not establish the hardship required for the bulk variance.

The Board reviewed the development history of the site and its deliberations regarding the initial development plan. The Board also considered the purpose of the setback ordinance. It determined that the drafters of the ordinance intended to place cell towers as far away from a road as possible, but the site chosen by T-Mobile was contrary to this intent. The Board also reviewed its efforts to screen the storage facility from Route 70 and its efforts to create a buffer.

Having retained jurisdiction,*fn4 the Law Division judge reviewed and upheld the February 5, 2009 resolution denying TMobile's application for site plan approval and the required bulk variance. In doing so, he acknowledged that the matter had been bifurcated, primarily because of concern expressed by Board members about the location of the tower and equipment on the property. The judge recognized that T-Mobile was required by statute to satisfy the negative criteria once again, and then held that the record fully supported the Board decision to deny the bulk variance. In doing so, the judge noted the purpose of the setback requirement:

The purpose of the ordinance placing the monopole -- in this case 195 feet [from a road] -- was to make sure that antennas or monopoles such as this were placed as far back as possible from all roadways. This would be impaired if the monopole is placed 65 feet [from] one roadway, -- that is the jughandle -- particularly when there is --there presumably may be an opportunity now and clearly was one back in 2004 to have located the pole and conformed to all the zoning requirements.

On appeal, T-Mobile argues the Board resolution is fatally defective; denial of site plan approval and setback variance is arbitrary, capricious and unreasonable; and the record does not support a substantial negative visual impact. It also contends the visual impact is irrelevant in light of the previously granted use variance for a 130-foot monopole. The Board responds that the trial judge properly identified and applied the relevant law, the Board's findings of fact were consistent with the evidence and legally adequate to support its decision, and the proposed site plan did not comply with all requirements of the Township land use ordinance.

A trial court's review of the Board's action is limited. The decision of a municipal board is entitled to great deference and will not be disturbed unless it is "arbitrary, capricious or unreasonable." Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965); see also New York SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). This standard is based upon the presumption that municipal boards "will act fairly and with proper motives and for valid reasons." Kramer, supra, 45 N.J. at 296. Boards should be permitted wide latitude given "their peculiar knowledge of local conditions . . . ." Ibid. In addition, "[b]ecause variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant." New York SMSA, supra, 370 N.J. Super. at 331 (citing Nynex Mobile Commc'ns Co. v. Hazlet Twp. Zoning Bd. of Adjustment, 276 N.J. Super. 598, 609 (App. Div. 1994)).

This same standard of review applies to an appellate court. Ibid.; see also Cox, N.J. Zoning and Land Use Administration, § 33-4 (Gann 2010). Nevertheless, this court "is not obliged to show deference . . . to the lower tribunal's interpretation of law and the legal consequences that flow from established facts." Cox, supra, § 33-4 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); see also New York SMSA, supra, 370 N.J. Super. at 331.

T-Mobile's argument is premised in part on the use variance previously granted by the Board. Implicitly and explicitly, it argues that having satisfied the positive and negative criteria for a use variance, it satisfied all criteria to obtain site plan approval with the requisite bulk variance and design waivers, and the Board should not have re-examined those criteria. This position is contrary, however, to the express provisions of the Municipal Land Use Law of New Jersey, N.J.S.A. 40:55D-1 to -136, (MLUL).

N.J.S.A. 40:55D-76b grants a board of adjustment the power to also grant site plan or subdivision approval whenever the proposed development requires a use variance. When, as here, the developer elects to bifurcate the application for a use variance and site plan approval, [t]he separate approval of the variance shall be conditioned upon grant of all required subsequent approvals by the board of adjustment. No such subsequent approval shall be granted unless such approval can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. [N.J.S.A. 40:55D-76b.]

The standard for review of the bifurcated site plan approval "tracks the negative criteria language found in N.J.S.A. 40:55D-70d." Meridian Quality Care, Inc. v. Bd. of Adjustment of Wall, 355 N.J. Super. 328, 332 (App. Div. 2002). The satisfaction of the negative criteria is required "to assure that the Board's creation of what, in essence, becomes a conforming use through the decisional and discretionary process, is still reconciled with the existing zoning scheme . . . ." Allocco & Luccarelli v. Twp. of Holmdel, 299 N.J. Super. 491, 498 (Law Div. 1997).

Nevertheless, bifurcation may be inappropriate when use variance and site plan issues are inextricably interrelated. In such cases, it is better to consider both applications in a single proceeding. Meridian Quality Care, supra, 355 N.J. Super. at 343. A consolidated proceeding is also appropriate when confusion is likely to occur. House of Fire Christian Church v. Zoning Bd. of Adjustment of Clifton, 379 N.J. Super. 526, 540-41 (App. Div. 2005).

Moreover, care must be taken in bifurcated proceedings in which the applicant requires a use variance because the proposed use is a permitted, conditional use rather than a non-permitted one. Meridian Quality Care, supra, 355 N.J. Super. at 340-41. This is because the municipality has already determined that a use is consistent with the zoning plan under certain conditions. Presumably, the same care must be taken when the development is a permitted accessory use but not a principal use. Having designated cell towers a permitted accessory use, the Township of Cherry Hill had already determined that such towers are compatible with the zone plan in some circumstances. See id. at 341-43 (emphasizing the difference between site plan review of a non-permitted use and a permitted conditional use).

The application of the negative criteria on site plan review must also account for the Court's recognition that a needed telecommunications facility serves the general welfare. Therefore, the Court has constructed a test that is similar to that employed for an inherently beneficial use. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 331 (1998); Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 385-86 (App. Div. 2003). Finally, an application for site plan approval that "includes a bulk variance . . . requires a showing that the relief can only be granted if there would be no 'substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.'" Puleio v. N. Brunswick Twp. Bd. of Adjustment, 375 N.J. Super. 613, 622 (App. Div.) (quoting N.J.S.A. 40:55D-70c), certif. denied, 184 N.J. 212 (2005). That is, when considering a c(2) variance, the scope of the board of adjustment review is limited to the negative criteria.

Having obtained a use variance, T-Mobile was required to obtain site plan approval. The setback requirement of the zoning ordinance for cell tower facilities required a variance. Due to the height of the tower, the zoning ordinance required a 195-foot setback; T-Mobile proposed 65 feet. It premised its setback variance request on N.J.S.A. 40:55D-70c(1), the hardship variance, and -70c(2), the flexible "c" variance.

A hardship variance may be granted when by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or . . . by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of [the zoning laws under the MLUL] would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, [such that] upon an application . . . a variance from such strict application of such regulation [will] relieve such difficulties or hardship. [N.J.S.A. 40:55D-70c(1).]

Likewise, a board of adjustment may grant a "c(2)" or "flexible" bulk variance when the purposes of the MLUL "would be advanced by a deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment . . . ." N.J.S.A. 40:55D-70c(2).

Here, T-Mobile was required to satisfy the positive and the negative criteria for a c(1) variance. Kogene Bldg. & Dev. Corp. v. Edison Twp. Bd. of Adjustment, 249 N.J. Super. 445, 449 (App. Div. 1991); see also Lang v. Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 55 (1999). That is, the applicant must prove exceptional and undue hardship (the positive criteria) and that the variance may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan (the negative criteria). For the c(2) variance, T-Mobile was required to satisfy only the negative criteria.

We are satisfied that the Board's findings concerning the hardship variance are well-supported by the record. Locating the cell tower within the setback requires a substantial deviation from the zoning plan and is unrelated to topographical or configuration problems associated with the site. If constructed at the time the site initially developed, there would have been no hardship. Rather, the need for the substantial deviation from the setback requirement is related to prior development on the site.

For the c(2) variance, T-Mobile had to establish that the benefits resulting from the deviation from the Township's setback requirement substantially outweighed any detriments. N.J.S.A. 40:55D-70c(2). Stated differently, T-Mobile was required to demonstrate that the setback relaxation actually made more sense in this location than adherence to the required setback. It is for this reason that some planners refer to c(2) as the "good planning" variance.

T-Mobile argues that the first hearing in April 2007 addressed the need for the facility as well as its placement of the facility. T-Mobile contends the Board endorsed its preferred location in the factual findings set forth in its May 2007 resolution.

The matter commenced as a consolidated proceeding. Thus, the record is replete with reference to the place on the property where T-Mobile sought to locate this facility. T-Mobile agreed to bifurcate the matter, however, when Board members expressed reservations about the design of the tower. The bifurcation decision occurred following an extensive discussion of "the look of the pole," and the discussion concerning "the look" focused on the manner in which the antennas would be mounted. The decision to bifurcate was precipitated by Board "concern about the design." In addition, some Board members expressed reservations about the placement of the tower facility on the property.

The findings of fact in the May 2007 resolution granting the use and height variances are focused on the need for an additional wireless telecommunications facility to serve the needs of the community. In doing so, however, the Board also commented favorably on the property in general as the place to locate the facility: some findings seem to refer favorably to the specific site in the rear of the storage facility and proximate to the jughandle.

T-Mobile also contends that the Board's consideration of evidence in support of a c(2) variance ignored the evidence presented. T-Mobile further argues that some findings have no basis in the evidence before the Board.

The Board was clearly concerned about the aesthetic impact of the tower facility. Some of its findings are internally inconsistent and do not accurately reflect the record. In its February 5, 2009 resolution, the Board incorporates the initial findings of fact set forth in the eighteen "whereas" clauses. Those findings contain some contradictions. For example, the Board cited one of the applicant's planners, who testified that trees would have to be removed to install the tower facility and associated ground equipment. It also adopts the findings of a second planner who stated no trees would be removed and additional vegetation would be planted. The record reveals that one planner referred to the initial 50-by-50-foot compound, but both planners agreed that the reduced 20-by-30-foot compound did not require tree removal. The Board did not acknowledge this difference.

In addition, the Board found that the proposed tower and ground compound could be seen from Kings Highway and the screening obtained from the 2004 development approval would be reduced. These findings, however, do not reflect the uncontroverted evidence that the ground compound, as reduced, would be virtually invisible from the jughandle. The placement behind the three-story storage facility minimized the visual impact for occupants and users of the property. Furthermore, the Board's reliance on the existence of a conforming location on the property to deny the setback variance actually undermines its aesthetic concerns. Locating the tower in the front parking lot of the storage facility would render the tower and ground equipment visible to virtually all occupants and users of the property and many passersby.

This record demonstrates that the Board failed to appreciate that it was required to review the site plan and setback variance application through a lens that required only an evaluation of the negative criteria. Moreover, the Board did not seem to appreciate that a telecommunications facility was a permitted accessory use in the zone and the nature of the facility advanced the public good.

Although the Board applied a clear standard designed to advance aesthetic and safety concerns associated with telecommunication facilities, the record reveals that the safety concerns were illusory. The Director of Community Affairs conceded that cell towers do not require a "fall zone" because a tower tends to crumple in the middle rather than fall lengthwise. Moreover, this record demonstrates that placement of this tower as prescribed by the setback ordinance would undermine rather than advance the stated aesthetic purpose of the ordinance. In this instance, T-Mobile presented a site plan that advanced the purposes of the MLUL. Any detriments arising from placement of the cell tower in the place sought by T-Mobile would not substantially outweigh the benefits of the prescribed setback. In fact, T-Mobile adduced substantial evidence that its proposed placement advanced rather than deterred the purposes sought to be obtained by the setback ordinance. On this record, the Board's denial of the setback variance was arbitrary, capricious and unreasonable. We, therefore, reverse the August 10, 2009 order affirming the February 2009 resolution.

Reversed.


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