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T-Mobile Northeast, L.L.C., F/K/A Omnipoint Communications, Inc v. Borough of Northvale Planning/ Zoning Board of Adjustment

April 29, 2011

T-MOBILE NORTHEAST, L.L.C., F/K/A OMNIPOINT COMMUNICATIONS, INC., PLAINTIFF-RESPONDENT,
v.
BOROUGH OF NORTHVALE PLANNING/ ZONING BOARD OF ADJUSTMENT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6908-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Yannotti and Espinosa.

Defendant Borough of Northvale Planning/Zoning Board of Adjustment (Board) of the Borough of Northvale (Borough) appeals from a judgment entered by the Law Division on April 12, 2010, which reversed the Board's denial of an application by plaintiff T-Mobile Northeast, L.L.C. (T-Mobile), for preliminary and final site plan approval and variances required for the construction of telecommunication facilities in the Borough. We affirm.

Here, T-Mobile, previously known as Omnipoint Communications, Inc., sought to construct a 110-foot monopole on property on Industrial Parkway in the Borough in order to address what T-Mobile said was a gap in wireless communication coverage in the area. The property upon which the monopole would be installed is located in the Light Industrial (LI) zone. T-Mobile submitted an application to the Board, seeking variances for use, height, side and front yard setbacks, lot depth, width and area.

The Board conducted public hearings on T-Mobile's application on May 7, 2008, June 4, 2008, March 4, 2009, April 1, 2009, and June 3, 2009. At those hearings, T-Mobile presented testimony in support of its application from Mark Nidel, its radio frequency health and safety expert; Bob Leavell (Leavell), its radio frequency engineer; John Moricz (Moricz), its site acquisition specialist; Todd M. Hay (Hay), a professional engineer who prepared T-Mobile's site plan; Brian Lainson (Lainson), the site engineer; and Timothy M. Kronk (Kronk), a professional planner.

At the June 3, 2009, hearing, the Board voted to deny the application. In the resolution memorializing its action dated July 1, 2009, the Board made the following findings:

1. The proposed site plan and variance approval would have a detrimental impact on the public by impairing the aesthetics of the site; the proposed monopole will have a negative visual impact in the surrounding community.

2. The existing building is currently being used for industrial use and the new proposed plan adds a second, primary industrial use. The applicant is proposing an additional, higher intensity use, not an accessory use or expansion of an existing use.

3. There were significant negative criteria associated with the project, namely that the proposed application constitutes, in the Board's judgment, overuse of the property which is already hosting a commercial use requiring significant traffic, noise and aesthetic detriments in close proximity to a residential zone. Furthermore, the property has four (4) existing lot and setback variances, and to add the additional variances required by the application would contravene the borough master plan and zoning plan.

4. There was significant public opposition to the project from neighboring residents who expressed concern about the aesthetic, noise, drainage and other issues related to the installation of the requested equipment at the proposed site.

Thereafter, T-Mobile filed an action in lieu of prerogative writs in the Law Division, seeking reversal of the Board's decision. The trial court conducted a trial in the matter on March 26, 2010, and on April 12, 2010, filed a written opinion in which it concluded that the Board's action was arbitrary, capricious and unreasonable. The court found that the record did not support the Board's findings.

The court noted that, after the Board acted, the Borough had amended its zoning ordinance to permit wireless telecommunications facilities in the LI zone as a conditional use, thereby indicating that the property was "particularly suited for the proposed use[.]" The court also noted that the Board had expressed concern about the visual impact of the monopole, but the court found that certain computerized photos, which showed the proposed ...


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