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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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