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Mesquite Tower Consulting, LLC, American v. Zoning Board of Adjustment of the Township of Dover

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 7, 2011

MESQUITE TOWER CONSULTING, LLC, AMERICAN CELLULAR NETWORK COMPANY, LLC D/B/A CINGULAR WIRELESS, OMNIPOINT FACILITIES NETWORK 2, LLC D/B/A T-MOBILE, PLAINTIFFS-RESPONDENTS,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF DOVER, DEFENDANT-RESPONDENT, AND ROBERT GLEASON, RICHARD ZIRKEL AND JACK LASHER, INTERVENORS-APPELLANTS.
MESQUITE TOWER CONSULTING, LLC, AMERICAN CELLULAR NETWORK COMPANY, LLC D/B/A CINGULAR WIRELESS, OMNIPOINT FACILITIES NETWORK 2, LLC D/B/A T-MOBILE, AND CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFFS-RESPONDENTS,
v.
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF TOMS RIVER (FORMERLY KNOWN AS THE TOWNSHIP OF DOVER), DEFENDANT-RESPONDENT, AND ROBERT GLEASON, RICHARD ZIRKEL, JACK LASHER, FRED AND JANET D'AGOSTINO, ELEANOR PAROW, JOHN AND JOYCE LEONE, GEORGE AND CAROL HAHN, TOM AND PHYLLIS WOODWARD, BOB AND MARIE COURY, AND MICHAEL AND ELIZABETH MITTENZWEI, INTERVENORS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-2925-05 and L-759-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 4, 2011 - Decided:

Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.

Ronald Kurzeja argued the cause for intervenors-appellants Robert Gleason, Richard Zirkel, and Jack Lasher.

Joseph Michelini argued the cause for intervenors-appellants Fred and Janet D'Agostino, Eleanor Parow, John and Joyce Leone, George and Carol Hahn, Tom and Phyllis Woodward, Bob and Marie Coury, Michael and Elizabeth Mittenzwei (O'Malley Surman & Michelini, attorneys; Susan E. DiMaria, on the brief).

Richard D. Stanzione argued the cause for respondents Mesquite Tower Consulting, LLC, Omnipoint Facilities Network 2, LLC d/b/a T-Mobile, and Cellco Partnership d/b/a Verizon Wireless (Hiering, Dupignac, Stanzione, Dunn & Beck, P.C., attorneys; Mr. Stanzione and Paige E. Baran, on the briefs). Christopher John Stracco argued the cause for respondents American Cellular Network Company, LLC d/b/a Cingular Wireless, LLC (Day Pitney LLP, attorneys; Mr. Stracco, of counsel and on the briefs; Karen Alfieri Hefner, on the briefs).

Thomas G. Gannon argued the cause for respondent Zoning Board of Adjustment of the Township of Toms River (Hiering, Gannon & McKenna, attorneys, join in the briefs of respondents Mesquite Tower Consulting, LLC, Omnipoint Facilities Network 2, LLC d/b/a T-Mobile, and Cellco Partnership d/b/a Verizon Wireless).

Intervenors Robert Gleason, Richard Zirkel, and Jack Lasser (the Gleason Homeowners), and intervenors Fred and Janet D'Agostino, Eleanor Parow, John and Joyce Leone, George and Carol Hahn, Tom and Phyllis Woodward, Bob and Marie Coury, and Michael and Elizabeth Mittenzwei (the Chadwick Beach Homeowners) (collectively, the intervenors), separately appeal from orders entered on June 6 and September 12, 2008. The Gleason Homeowners also appeal from orders entered on May 9, 2006, and April 17, 2009, the last of which disposed of all issues as to all parties.*fn1

This is an action in lieu of prerogative writs instituted by plaintiffs Mesquite Tower Consulting, LLC (Mesquite), American Cellular Network Company, LLC, doing business as Cingular Wireless (Cingular), Omnipoint Facilities Network 2, LLC, doing business as T-Mobile (T-Mobile), and Cellco Partnership, doing business as Verizon Wireless (Verizon), challenging the denial by defendant Zoning Board of Adjustment (ZBA) for the Township of Toms River (the Township) of their applications to construct a cell tower in the parking lot of the Chadwick Island Marina (the marina). The ZBA twice denied the applications. On plaintiffs' second appeal to the Law Division, the judge reversed, granted the requested use variance, and remanded to the ZBA for fact-findings as to the requested conditional use variances, bulk variances, and minor site plan approval, which the ZBA then granted.

The intervenors, homeowners in a residential neighborhood adjoining the marina, claim that the ZBA did not have jurisdiction to hear the application in the first instance. They assert that they were denied due process because there was insufficient notice of the first set of ZBA hearings and the judge erred by permitting evidence from the ZBA's first set of hearings to be introduced into evidence at the ZBA's second set of hearings. They also contest the judge's conclusions as to whether the evidentiary record supported the grant of a use variance and his refusal to dismiss the application based upon plaintiffs' alleged failure to comply with the public-trust doctrine and to timely submit accurate site plan drawings. We find no merit in these contentions and affirm.

I.Mesquite leases a portion of the marina property. Cingular, T-Mobile, and Verizon contracted with Mesquite to construct the cell tower at issue, which was completed on or about December 21, 2009. The marina is located at 301-400 Strickland Boulevard, which bisects its horseshoe-shaped property. It occupies tax-map Block 1946.01, Lots 1 and 1.01 on one side of the street and Block 1946.02, Lots 57 and 57.01 on the other side of the street. The marina is comprised of approximately four acres and is in the Township's General Business (GB) Zone. Cell towers are not permitted uses in any zone in the Township. Boatyards and marinas are permitted only as a conditional use in the GB Zone. The GB Zone's maximum permitted height is forty feet.

In 2004, Mesquite, Cingular, and T-Mobile filed an application with the ZBA*fn2 seeking necessary use and height variances and minor site plan approval to construct a cell tower designed as a 130-foot monopole, resembling a white flagpole, with no external antennae or cables, and an approximately forty- by sixty-eight-foot compound at the base of the tower for equipment and cabinets, all of which would be surrounded by a security fence. The monopole and compound were to be constructed in the center of a large gravel parking area on Lot 57 at the southern portion of the marina, which is surrounded on three sides by water. The monopole would be about 125 feet from Strickland Boulevard and eighty feet from the western property line, which is also the bulkhead line.

Because the application identified the subject property as Lots 57 and 57.01, only property owners within 200 feet of those lot numbers were provided notice of the application. All of the intervenors received notice of the application with the exception of the Leones, the Hahns, and the Mittenzweis. The ZBA held hearings on the application on ten dates between August 2, 2004, and July 14, 2005. Mesquite, Cingular, and T-Mobile submitted all of their evidence on August 2, 2004, and made their witnesses available for cross-examination on future dates.

Counsel for the Gleason Homeowners appeared and participated in the hearings on and after August 2, 2004. The transcript from that hearing indicates that the Chadwick Beach Homeowners were aware of the application since two months earlier the Chadwick Beach and Yacht Club had met to address the matter. However, counsel for the Chadwick Beach Homeowners Association did not appear until the second hearing date, noting at that time that he had read the transcript from the first hearing.

Over the course of the ensuing year, the ZBA heard testimony from six witnesses presented by the applicants (Richard Conroy, a radio frequency engineer; James F. Stanton, a site engineer; Mark Damiano, a licensed professional engineer; John Gillooly, a real estate expert; Kevin Dey, a managing member of Mesquite; and William Masters, Jr., a professional planner), its own radio frequency engineer, Dr. Bruce Eisenstein, and three witnesses presented by the Chadwick Beach Homeowners Association (Richard Lapinski, a professional planner; Ross Sorci, a radio frequency engineer; and Paul R. Johnson, a real estate expert).*fn3

At the conclusion of the hearings, the ZBA voted to deny the application. It memorialized its decision in a resolution dated August 11, 2005. It credited Johnson's opinion that the proposed cell tower would negatively affect home values, rejecting Gillooly's contrary opinion. It concluded that the cell tower was inconsistent with the nature of the barrier island and that the marina was not particularly suited to cell tower use because it was adjacent to a residential neighborhood.

Mesquite, Cingular, and T-Mobile appealed by action in lieu of prerogative writs (L-2925-05). The judge permitted the Gleason Homeowners to intervene. They then filed an answer to the complaint and a motion for remand based upon alleged defects in the notice of the application.

The judge heard argument on February 24, 2006, issued an oral decision granting the motion on April 28, 2006, and entered an order to that effect on May 9, 2006. He ruled that notice of the first hearings was defective and remanded to the ZBA to allow Mesquite, Cingular, and T-Mobile to submit a new application, giving statutory notice to all property owners within 200 feet of the entire marina property rather than just lots 57 and 57.01. The judge, retaining jurisdiction, further ruled: "As part of . . . their proofs adduced during the new hearings, plaintiffs may mark into evidence the exhibits previously marked in the original hearings, as well as the transcript of said original hearings."

On remand, Mesquite, Cingular, and T-Mobile submitted a new development application, which Verizon and Sprint joined; thus, all four cell carriers licensed to do business in the State participated in the application.*fn4 The revised application was for a 135-foot monopole, with no flag or light on top, and a forty- by sixty-eight-foot equipment compound. Use and height variances were required, as before. In addition, the ZBA considered site plan issues and a conditional use permit for the marina, with variances requested from certain conditional use requirements.

The ZBA held hearings on six dates between June 29 and November 30, 2006. Counsel for the Chadwick Beach Homeowners Association did not appear; however, counsel for concerned citizens Frank Kelley and Frank Iris and some of the Chadwick Beach Homeowners (the Woodwards, the Leones, and the Hahns) appeared on the second hearing date. The transcripts and exhibits from the hearings on the first application were moved into evidence. All of plaintiffs' witnesses repeated their testimony and expert conclusions from the first set of hearings with the exception of Gillooly, who did not appear. The ZBA also heard testimony from George Sopko (the Chadwick Beach real estate expert), and Andrew Janiw (the Chadwick Beach planning expert). The ZBA considered questions, comments, and testimony from the public, including, notably, some of the intervenors (Joyce Leone, the Woodwards, Marie Coury, the D'Agostinos, Michael Mittenzwei, Carol Hahn, and Robert Gleason). Some members of the public favored the tower, while others objected to it.

By vote on November 30, 2006, memorialized in a resolution dated January 11, 2007, the ZBA again denied the application. It also denied the application for conditional use variances, finding fault with the marina owner's failure to testify and respond to concerns about his ability and willingness to police and maintain the site, particularly with respect to the storage of boats too close to Strickland Boulevard.

Although a majority voted in favor of granting the application for a use variance, the application was deemed denied because a super-majority did not vote in its favor. See N.J.S.A. 40:55D-70(d). The minority voting against the use variance found that the applicants had not proven the positive criteria because the site was not particularly suited to a cell tower use. This was so because the marina was already over-utilizing the site and adding another use would exacerbate that problem. Additionally, the Ocean Beach Fire Company site, where Sprint was pursuing an application, would fill the gap in coverage. The minority also found that the negative criteria had not been met because there would be a substantial loss in property value and the alternative site would have less of a negative impact. Based upon these rulings, the ZBA did not decide the applications for a height variance, bulk variances, and site plan approval.

Plaintiffs filed a new action in lieu of prerogative writs, appealing the ZBA's second denial (L-759-07). By order dated April 13, 2007, the Chadwick Beach Homeowners were granted leave to intervene. In May 2007, the two actions were consolidated. The ZBA and the intervenors filed answers.

In February 2008, the Gleason Homeowners moved to dismiss based upon an alleged failure to comply with the public-trust doctrine, which plaintiffs opposed. On March 7, 2008, the judge heard arguments on this motion and the merits of plaintiffs' appeal. By written opinion dated May 23, 2008, the judge reversed the ZBA and granted plaintiffs' application for a use variance; remanded for findings of fact as to the application for conditional use variances, bulk variances, and minor site plan approval; and denied the Gleason Homeowners' motion.

The evidence developed by plaintiffs during the 2004-2005 and 2006 hearings established that there was an undisputed need for a cell tower to fill a gap in coverage between cell towers located in Brick and Seaside Heights and to provide sufficient capacity to handle the needs of wireless customers. According to Conroy, an expert radio frequency engineer for plaintiffs, the original 130-foot proposed height would provide just enough coverage to overlap with the Brick wireless tower and would provide seamless coverage with the Seaside Heights tower because the marina was located in the middle of the coverage gap.*fn5 There were no existing structures that would meet the need for coverage within a half-mile radius of the marina. At the 2006 hearings, the capacity and coverage needs of the new carriers, Verizon and Sprint, were addressed. According to Conroy, a tower of between 100 and 135 feet was necessary to accommodate the number of antennae necessary for all four carriers. However, at only 100 feet, the lowest carrier on the tower would not have its needs adequately met.

Mesquite had searched for alternate sites and considered seven, including the Ocean Beach Firehouse (where Sprint was pursuing a cell tower application) and the Dover-Brick First Aid Squad property. However, the alternate sites were either unavailable or less suitable because they were located in residential zones, were smaller properties, or had more adjacent residential properties. The marina was particularly suited to cell tower use because it was in the GB Zone and it had sufficient space, with the fewest residential neighbors. If the tower were to fall, it would fall completely upon the marina property and the lagoon. Moreover, the tower and equipment compound would occupy only a small portion of an existing parking lot, without interfering with the marina's operations.

According to Masters, an expert planner for plaintiffs, a wireless telecommunications facility would be a less intensive use than "practically all of the other permitted and conditional uses" in the zone. The use and height variances could be granted without substantial impairment to the zoning plan and ordinance. Additionally, the positive criteria for a variance were met first because the applicants were carriers licensed by the FCC and, therefore, were presumed to serve the general welfare. Second, the site was particularly suited for a wireless telecommunications facility because (a) it was located in the middle of an existing gap in coverage, (b) it was close to major traffic corridors that are primary generators of wireless telecommunications, (c) it was located in a GB zone, (d) it was already developed and the proposed tower was compatible with the existing marina as the primary land use (in fact, flagpoles were characteristically associated with a marina), and (e) it was a large lot.

Masters also opined that the positive criteria substantially outweighed the negative because there was a tremendous public benefit to the proposed tower and there were minimal detrimental effects. The use was extremely passive because the tower would be unmanned, remotely monitored, and serviced only once per month by technicians in an SUV or light truck. Furthermore, the equipment would produce no audible alarms and no solid waste. Finally, the tower would not interfere with transmissions by emergency service providers and would not cause any negative health effects. The primary negative effect would be the tower's visual impact, but it would be insignificant because camouflaging the tower as a flagpole was "a creative and innovative development technique which promotes a desirable visual environment, a good civic design and arrangement."*fn6

Masters performed a "crane test" and photo simulation in order to assess the visual impact of the proposed cell tower. The test demonstrated that the flagless monopole "is the least visually intrusive type of structure for the various types of monopoles or towers that are available, and . . . the overall visual impact does not cause a substantial or significant detriment to the public good." Additionally, the ZBA could impose reasonable conditions to lessen any detrimental visual impacts, such as landscaping around the equipment compound.

Masters testified that six conditional use variances were necessary: (1) 36.6 feet of front-yard setback with respect to the main marina building was proposed, whereas 50 feet was the minimum required; (2) 4.4 feet of rear-yard setback was proposed with respect to the marina's accessory building (where a gas dock was located), whereas 20 feet was the minimum required; (3) 20 feet of front-yard setback was proposed with respect to boat storage, whereas 35 feet was the minimum required; (4) 0 feet of side-yard setback was proposed with respect to boat storage, whereas 20 feet was the minimum required; (5) 0 feet of rear-yard setback was proposed with respect to the marina's boat-launching facility, whereas 20 feet was the minimum required; and (6) 16.8 feet of side-yard setback was proposed for the launching facility, whereas 20 feet was the minimum required.

All of the variances, with the exception of (3), were necessary for existing conditions on Lots 1 and 1.01, whereas the cell tower was to be built on Lots 57 and 57.01.

Masters opined that the requested bulk variances could be granted without detriment to the zoning ordinance and master plan because these were all existing, forty-five-year-old non-conforming conditions and most were caused by the need to have marina structures proximate to the water. The installation of the cell tower and equipment compound would not exacerbate "any of the existing non-conformities relative to the marina" or intensify the marina use because the non-conformities were primarily on Lots 1 and 1.01, whereas the monopole would be across the street on Lots 57 and 57.01. Furthermore, the entire wireless facility would occupy only three percent of the total land area of Lots 57 and 57.01.*fn7

Gillooly testified that the proposed tower would also not have any adverse impact on real estate values in the surrounding area. This was based on six studies that had been conducted regarding the potential impact of telecommunications towers on real estate values and a review of real estate sales records around a comparable flagpole-design cell tower in Randolph Township. In that study, the prices of houses sold before construction of the cell tower in 2002 were compared to the prices of the same homes sold afterwards. There was no negative effect found from the cell tower on the sale prices of the homes within view of the tower.*fn8

With respect to the marina property, there were certain necessary bulk variances and deviations from conditional use requirements. Plaintiffs proposed a certain fence design and access easements and offered evidence that the marina had sufficient space for parking to meet the Township's ordinance requirements of one-and-a-half parking spaces for each boat slip.

Based on this evidence, the judge found that the ZBA had acted arbitrarily and capriciously in denying the use variance because its denial lacked any rational basis and was unsupported by competent evidence in the record. Plaintiffs had met the positive criteria because they held FCC licenses and the marina was particularly suited to a cell tower given the undisputed need for expanded coverage. Plaintiffs had made a reasonable, good faith effort to find a less intrusive and suitable site, but none was available because the ZBA later denied Sprint's application and there was no appeal from that denial. Thus, it was res judicata that the Ocean Beach Fire Company site was unavailable. Additionally, denial of both applications would violate the federal Telecommunications Act (TCA) by having the practical effect of barring wireless telecommunications facilities anywhere in the municipality.

As for the negative criteria, the judge found that the minority ZBA members erred in relying upon the net opinion of the Chadwick Beach real estate expert and in rejecting plaintiffs' real estate expert's opinion without explanation. The judge reasoned that the Chadwick Beach expert's study could not be applied to plaintiffs' monopole because the study was based on lattice-style cell towers, one of which was substantially higher than the proposed monopole. Finally, the minority ZBA members failed to balance the positive and negative criteria because they "made no attempt to identify how many neighbors would be impacted and how they would be 'unduly' burdened."

With respect to the conditional use variances, the judge held that the ZBA failed to make any relevant findings of fact; failed to address the testimony from plaintiffs' experts; and failed to apply the applicable legal standard. Therefore, another remand was necessary on this issue.

Finally, the judge denied the Gleason Homeowners' motion to dismiss because there was no evidence that the application would deprive the public of reasonable access to the waterfront contrary to the public-trust doctrine. The judge also found that the ZBA was not required to deny conditional approval of the application subject to review by the DEP for compliance with the public-trust doctrine. The judge issued an order memorializing his decision on June 6, 2008. He retained jurisdiction during the remand.

The Gleason Homeowners moved for reconsideration, arguing that the ZBA had lacked jurisdiction to act based upon defective notice of the first set of ZBA hearings and the incorporation of evidence from the first set of hearings into the second set of hearings deprived them of the right to cross-examine. The Chadwick Beach Homeowners joined the motion, and plaintiffs opposed it. The judge heard argument on August 29 and September 12, 2008, and denied the motion by oral opinion and order dated September 12, 2008.*fn9

The ZBA on July 10, 2008, issued a resolution approving the use variance, height variance, and minor site plan, as well as conditional use variances. However, it imposed a number of conditions on its approval, such as specifying appropriate fencing and landscaping.

Plaintiffs initially sought judicial review of the ZBA's resolution, but they withdrew their request. After first submitting a site plan that was unacceptable, they submitted a revised site plan. The ZBA engineer issued a certificate of resolution compliance, and the zoning officer issued a permit for development.

The Gleason Homeowners then moved to dismiss the zoning application for failure to comply with the July 10, 2008, resolution and other alleged site plan deficiencies, which plaintiffs opposed. By oral opinion and order dated April 17, 2009, the judge entered a final judgment denying the motion. These appeals followed.

The Chadwick Beach Homeowners raise the following issues for our consideration:

I. THE [ZBA] LACKED JURISDICTION AS THE NOTICE OF THE MESQUITE 1 HEARINGS WAS INSUFFICIENT AS A MATTER OF LAW, AND THE INCORPORATION OF THE MESQUITE 1 EVIDENCE INTO MESQUITE 2 DID NOT ALLOW THE PARTIES NOTICED ONLY OF MESQUITE 2 A MEANINGFUL OPPORTUNITY TO PARTICIPATE IN THE CREATION OF THE FULL RECORD ADMITTED IN MESQUITE 2.

II. THE TRIAL COURT ERRED BY ALLOWING ALL TRANSCRIPTS OF TESTIMONY AND PREVIOUSLY MARKED EXHIBITS FROM THE INITIAL ROUND OF HEARINGS TO BE UTILIZED BY THE APPLICANT AS PROOF DURING THE SECOND ROUND OF HEARINGS AS SEVERAL PARTIES NOTICED OF THE SECOND ROUND OF HEARINGS ONLY HAD NO OPPORTUNITY FOR MEANINGFUL PARTICIPATION IN THE CREATION OF THAT RECORD.

III. THE TRIAL COURT SUBSTITUTED ITS JUDGMENT FOR THAT OF THE [ZBA] BY REJECTING THE EXPERT OPINION OF APPELLANT'S REAL ESTATE APPRAISER AS A NET OPINION AND ACCEPTING THE EXPERT OPINION OF [PLAINTIFFS'] REAL ESTATE EXPERT, WHO DID NOT TESTIFY AT THE SECOND ROUND OF HEARINGS.

IV. THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THAT ADDING A CELL TOWER TO AN ALREADY OVER BURDENED [sic] MARINA SITE WOULD MERELY INTENSIFY THE EXISTING MARINA USE ALREADY REQUIRING MULTIPLE VARIANCES.

V. THE TRIAL COURT ERRED IN FINDING THE SITE WAS PARTICULARLY SUITED FOR THE CELL TOWER USE.

The Gleason Homeowners raise the following issues on appeal:

POINT I - [PLAINTIFFS] FAILED TO SATISFY THE STATUTORY NOTICE REQUIREMENTS.

A - THE [ZBA] DID NOT ACQUIRE JURISDICTION SINCE ALL OF THE REAL PROPERTY OWNERS WITHIN 200 FEET OF THE SUBJECT PROPERTY WERE NOT GIVEN NOTICE.

B - THE [ZBA] DID NOT ACQUIRE JURISDICTION TO HEAR THE CASE SINCE THE NOTICE DID NOT ADEQUATELY STATE THE NATURE OF THE MATTERS TO BE CONSIDERED.

C - LACK OF JURISDICTION IS A NON-WAIVABLE DEFENSE WHICH CAN BE ASSERTED AT ANY TIME AND IS EFFECTIVE WHENEVER MADE.

POINT II - THE MARINA IS SUBJECT TO THE PUBLIC[-]TRUST DOCTRINE.

A - PLAINTIFFS HAVE NOT DEMONSTRATED THE MARINA'S COMPLIANCE WITH THE PUBLIC[-]TRUST DOCTRINE.

B - PLAINTIFFS' APPLICATION AND SITE PLAN MUST BE REVERSED BECAUSE THEY HAVE NOT SATISFIED THE PUBLIC[-]TRUST DOCTRINE RIGHTS.

C - THE LAND USE APPLICATION AND SITE PLAN SHOULD BE DISMISSED BECAUSE PUBLIC ACCESS TO THE WATERFRONT MUST FIRST BE PROVIDED FOR AND APPROVED BY THE [DEP].

POINT III - THE ZONING APPLICATION SHOULD BE DISMISSED FOR FAILURE TO COMPLY WITH THE TERMS OF THE ZONING BOARD RESOLUTION OF JULY 10, 2008.

A - [PLAINTIFFS] FAILED TO TIMELY SUBMIT REVISED SITE PLAN DOCUMENTS.

B - THE ZONING APPLICATION SHOULD BE DISMISSED SINCE THE SITE PLAN DRAWINGS ARE UNENFORCEABLE AND INCONSISTENT.

II. We find no merit to the issues raised by the Gleason Homeowners in their Points II and III. The issue respecting the public-trust doctrine*fn10 has been previously adjudicated by them. See In re Mesquite Tower Consultants, L.L.C., CAFRA Permit Number 1507-04-0074.1 CAF 040001 (Coastal General Permit 25), No. A-6075-05 (App. Div. July 8, 2008) (slip op. at 12) ("[T]he proposed project in no way implicates the public access considerations of [N.J.A.C. 7:7E-3.23(i), requiring public access to the waterfront]").*fn11 They are collaterally estopped from raising this issue again. Perez v. Rent-A-Center, Inc., 186 N.J. 188, 199, reconsideration denied and motion for clarification granted, 188 N.J. 215 (2006), cert. denied, 549 U.S. 1115, 127 S. Ct. 984, 166 L. Ed. 2d 710 (2007). Moreover, the Legislature, in the Public Access and Marina Safety Task Force Act, N.J.S.A. 13:19-38 to -45, effective on September 10, 2008, imposed a moratorium expiring on December 31, 2010, on implementation of DEP rules that apply the public-trust doctrine to marinas. N.J.S.A. 13:19-40. The DEP regulations on which the Gleason Homeowners rely had thus been suspended, and we must apply the statute in effect at the time of decision. N.J. Dep't. of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 498 (1983).

The issue relating to plaintiffs' compliance with the resolution of July 10, 2008, lacks merit and is moot since the ZBA issued a certificate of resolution compliance and a development permit because the Gleason Homeowners did not move to join the ZBA engineer and the zoning officer as indispensable parties pursuant to Rule 4:28-1(a) and because they have failed to demonstrate that they acted in an arbitrary, capricious, or unreasonable manner. Booth v. Bd. of Adjustment of Rockaway, 50 N.J. 302, 306 (1965).

III. We find no merit in the intervenors' contentions that the ZBA lacked jurisdiction to hear the second application based upon inadequate notice of the hearings on the first application and that the incorporation of evidence from the 2004-2005 hearings into the 2006 hearings denied due process to those who received notice of only the 2006 hearings. We also find no merit to the Gleason Homeowners' additional contention that the notice of the 2006 hearings was deficient in that it did not adequately describe the application, since it failed to mention the need for a conditional use permit for the marina.

Questions regarding the adequacy of the notice, which go to a zoning board's jurisdiction, Twp. of Stafford v. Stafford Township Zoning Bd. of Adjustment, 154 N.J. 62, 79 (1998), are "subject to de novo review by the courts and thus afforded no deference," Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 350 (App. Div. 2008).

Under N.J.S.A. 40:55D-11, notice of an application for development "shall state . . . the nature of the matters to be considered." The purpose of providing such notice is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file. [Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237-38 (App. Div. 1996).]

Thus, "an accurate description of what the property will be used for under the application" is "the critical element" of the notice. Id. at 238. The language used should be "such that an ordinary layperson could understand" the nature of the application and "its potential impact upon him or her." Id. at 239; accord Pond Run, supra, 397 N.J. Super. at 351-55.

Notice must be provided to "the owners of all real property as shown on the current tax duplicates, located in the State and within 200 feet in all directions of the property which is the subject of such hearing." N.J.S.A. 40:55D-12(b) (emphasis added). Notice must also be given to owners of property within 200 feet of property even if it will only be used by the applicant as a secondary access road. Brower Dev. Corp. v. Planning Bd. of Clinton, 255 N.J. Super. 262, 267-70 (App. Div. 1992).

The issue of adequacy of the notice of the 2004-2005 hearings is moot because any alleged deficiencies were remedied after the judge's first remand. At that time, notice of the second application was sent to property owners within 200 feet of the entire marina property, and that notice identified the need for a conditional use permit. Therefore, the ZBA had jurisdiction to consider the second application.

We find no mistaken exercise of discretion in the judge permitting plaintiffs to mark the 2004-2005 exhibits and transcripts into evidence at the 2006 hearings.

There were sixteen hearings in this matter over the course of three years----ten hearings between August 2004 and July 2005 and six hearings between June and November 2006. The hearings were well attended and well publicized, and the intervenors were represented at both sets of hearings. At the 2004-2005 hearings, the Gleason Homeowners were represented by privately retained counsel. And, arguably, the Chadwick Beach Homeowners were represented through counsel retained by the Chadwick Beach Homeowners Association. At the 2006 hearings, the Gleason Homeowners were again represented by privately retained counsel as were several of the Chadwick Beach Homeowners. Moreover, several of the intervenors commented on the application and questioned witnesses at both sets of hearings.

The objectors and the general public were adequately heard on every conceivable issue, and the incorporation of evidence from the 2004-2005 hearings into the 2006 hearings did not result in a denial of due process. All of plaintiffs' 2004-2005 witnesses, with the exception of Gillooly, appeared in 2006. They repeated their testimony from the first set of hearings and added more information relevant to the second application.

Gillooly was extensively cross-examined in 2004-2005 by counsel for the Gleason Homeowners and counsel for the Chadwick Beach Homeowners Association, as well as the ZBA and members of the public, including one of the Chadwick Beach Homeowners, Joyce Leone. Neither set of intervenors complained about his absence from the 2006 hearings, nor did they request the ZBA to recall him for further cross-examination, as they could readily have done. See, e.g., Shim v. Washington Twp. Planning Bd., 298 N.J. Super. 395, 413 (App. Div. 1997) (no denial of due process where objectors expressed no interest in questioning witnesses, making failure to invite cross-examination inconsequential). The intervenors had the transcript of the expert's testimony available to them at the 2006 hearings, and the Chadwick Beach Homeowners presented their own real estate expert to rebut plaintiffs' expert's opinion, as the Gleason Homeowners could also have done.

Thus, the intervenors were provided with a right of cross-examination, N.J.S.A. 40:55D-10(d), which in any event may be limited within the discretion of the Board. Lincoln Heights Ass'n v. Twp. of Cranford Planning Bd., 314 N.J. Super. 366, 384-85 (Law Div. 1998), aff'd o.b., 321 N.J. Super. 355 (App. Div.), certif. denied, 162 N.J. 131 (1999); William M. Cox & Stuart R. Koenig, New Jersey Zoning and Land Use Administration §§ 27-3.1, -3.4 at 622, 625-26 (2011).

[C]courts cannot, nor should they, "micromanage" the manner in which municipal agencies conduct their hearings. Baghdikian v. Bd. of Adjustment of Bor. of Ramsay, 247 N.J.

Super. 45, 50 (App. Div. 1991). Rather, it is only when there has been a denial of fundamental fairness that courts have authority to interfere. Polillo v. Deane, 74 N.J. 562, 579 (1977). [DeMaria v. JEB Brook, LLC, 372 N.J. Super. 138, 145 (Law Div. 2003).]

Here, the notice accomplished its intended purpose, the intervenors received due process, and there was no denial of fundamental fairness. Thus, the ZBA had jurisdiction to act on the second application. As a result, we will consider the substantive issues on appeal.

IV. The Chadwick Beach Homeowners contend the judge erred by reversing the ZBA's denial of a use variance. With respect to the positive criteria, they contest the judge's finding that the marina is particularly suited to a cell tower use. With respect to the negative criteria, they argue that the judge inappropriately substituted his judgment for that of the ZBA when rejecting Sopko's opinion in favor of Gillooly's. Once again, we disagree.

The location of cell towers is governed by both federal and state law. Under the TCA, "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C.A. § 332(c)(7)(B)(iii). This standard "is analogous to the arbitrary, capricious, and unreasonable standard of review traditionally afforded to decisions of zoning boards under the MLUL [Municipal Land Use Law]." Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp., 172 N.J. 75, 89 (2002); see also Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 325-27 (1998) (discussing relationship between TCA and MLUL). Applying that standard, a zoning board's decision is entitled to deference, and reversal is warranted only if the decision was arbitrary, capricious, or unreasonable. Jock v. Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005); Cell S., supra, 172 N.J. at 81-82; Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).

Even greater deference is given to variance denials. Med. Ctr. at Princeton v. Twp. of Princeton Zoning Bd. of Adjustment, 343 N.J. Super. 177, 199 (App. Div. 2001); Omnipoint Commc'n, Inc. v. Bd. of Adjustment of Bedminster, 337 N.J. Super. 398, 416 (App. Div.), certif. denied, 169 N.J. 607 (2001). "Where a board of adjustment has denied a variance, the plaintiff has the heavy burden of proving that the evidence presented to the board was so overwhelmingly in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable." Med. Realty Assocs. v. Bd. of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988).

We need not decide whether a de novo standard of review applies under the TCA, as Cingular argues, because as the judge held, the ZBA's resolution fails even when considered under the deferential standard of review. See Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 524 (App. Div.) (stating that the "logical sequence" is for the court, "[b]efore deciding whether the Board's denial violated the TCA's statutory bar under § 332(c)(7)(B)(i)(II), . . . to address whether, under principles of traditional state land use law, the Board's denial was arbitrary, capricious or unreasonable and unsupported by sufficient evidence in the record"), certif. denied, 175 N.J. 75 (2002).

Our Supreme Court has declined to treat cell towers as inherently beneficial uses. See Cell S., supra, 172 N.J. at 90- 91; Smart SMR, supra, 152 N.J. at 328-31. Therefore, applicants seeking to construct cell towers must satisfy the "positive criteria" to obtain a use variance under N.J.S.A. 40:55D-70(d), which requires an applicant to prove that there exist "special reasons" to allow departure from the zoning regulations. See Cell S., supra, 172 N.J. at 90. "The positive criteria requirement for a use variance is satisfied when [the] applicant can demonstrate that the 'use promotes the general welfare because the proposed site is particularly suitable for the proposed use.'" Id. at 84 (quoting Medici v. BPR Co., 107 N.J. 1, 4 (1987)).

"With telecommunications towers, an FCC license generally establishes that the use promotes the general welfare," New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999), and Cingular, T-Mobile, Verizon, and Sprint all hold FCC licenses. Thus, the use promotes the general welfare. Ibid.; see also Smart SMR, supra, 152 N.J. at 336 (stating that while an FCC license is generally sufficient for the general welfare aspect, if a tower or monopole is involved, "the applicant must prove that the site is particularly suited for that use"). The real issue is whether plaintiffs demonstrated particular suitability.

The Chadwick Beach Homeowners contend that the judge erred by finding the marina particularly suited to a cell tower. They urge that it is not so suited because the site is surrounded by residential properties in a resort community, there is no way to mitigate the visual impact of the tower due to the flat topography on a barrier island, and despite a later denial of Sprint's application to locate a cell tower at the Ocean Beach Fire Company, there may exist other more suitable sites for the tower.

It was undisputed that a cell tower is needed between the existing towers in Brick and Seaside Heights. Despite that need, the Township does not permit cell towers in any of its zones, notwithstanding that it "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C.A. § 332(c)(7)(B)(i)(II); see also Smart SMR, supra, 152 N.J. at 334-35; Sprint Spectrum, L.P. v. Zoning Bd. of Adjustment of Leonia, 360 N.J. Super. 373, 388-89 (App. Div. 2003).

The marina is in the center of the area of need, is in the GB Zone, and is a large property surrounded on three sides by water; further, the monopole and equipment compound will utilize only a small portion of the marina's parking lot; the nearest residential property would be outside the tower's fall zone; and no other properties in the relevant search area were equal to or superior to the marina property in terms of amount of space and the fewest number of residential neighbors. Cf. Cell S., supra, 172 N.J. at 84-86; New Brunswick Cellular, supra, 160 N.J. at 14-17; Smart SMR, supra, 152 N.J. at 332; Sprint Spectrum, supra, 360 N.J. Super. at 389-91; Ocean Cnty. Cellular, supra, 352 N.J. Super. at 525-32.

In overruling the ZBA, the judge did not err in taking into account the ZBA's subsequent denial of Sprint's application with respect to the Ocean Beach Fire Company property. It could take judicial notice of the Sprint resolution under N.J.R.E. 201(a). Indeed, the ZBA anticipated such a result when it cited Sprint's application as a basis for denying plaintiffs' application.

We have addressed the question of alternative sites before, stating:

Zoning boards do not have carte blanche to reject an application based on conjecture that a possible alternative site is both suitable and available. Requiring providers to disprove the suitability of every possible alternate site is a daunting task because of the uncertainty surrounding the availability and ultimate suitability of such sites. Moreover, an alternate site may require the provider to file a variance application, the approval of which is far from certain.

A provider need not pursue alternatives when it has established that "further reasonable attempts to build a wireless communication facility to fill the gaps in service would likely be fruitless and a waste of time." [N.Y. SMSA Ltd v. Twp. of Mendham Zoning Bd. of Adjustment, 366 N.J. Super. 141, 163-64 (App. Div.), aff'd o.b., 181 N.J. 387 (2004) (citations omitted); accord Ocean Cnty.

Cellular, supra, 352 N.J. Super. at 529-30.]

That holding applies here. Plaintiffs considered other possible sites, but none was available or more suitable than the marina site. And any site would require a use variance, which the ZBA was loathe to grant. Obligating plaintiffs to engage in further attempts to find an alternate site would be "'fruitless and a waste of time.'" N.Y. SMSA, supra, 366 N.J. Super. at 164 (quoting Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Bd. of Adjustment, 352 N.J. Super. 575, 610 (App. Div.), certif. denied, 174 N.J. 543 (2002)). Requiring it to do so was arbitrary, capricious, and unreasonable.

We similarly find no error in the judge's conclusion that plaintiffs had proven the negative criteria. Applicants for a use variance also must satisfy the negative criteria of N.J.S.A. 40:55D-70(d), as follows:

No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief 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.

In ascertaining whether the negative criteria have been satisfied in a cell-tower case, our Supreme Court has held that a court "will weigh, as [it] would with an inherently beneficial use, 'the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.'" Smart SMR, supra, 152 N.J. at 332 (quoting Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 166 (1992)).

The Court has stated that "[p]roof of an adverse effect on adjacent properties and on the municipal land use plan . . . generally will require qualified expert testimony. Bare allegations that the construction of a tower or monopole will cause a decline in property values rarely will suffice." Smart SMR, supra, 152 N.J. at 336.

With respect to witness credibility:

Zoning boards may choose which witnesses, including expert witnesses, to believe. However, to be binding on appeal, that choice must be reasonably made. In addition, the choice must be explained, particularly where the board rejects the testimony of facially reasonable witnesses. The board cannot rely upon unsubstantiated allegations, nor can it rely upon net opinions that are unsupported by any studies or data.

[Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 434-35 (App. Div. 2009) (citations omitted); see also N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 338 (App. Div. 2004).]

Here, the minority ZBA members rejected the testimony of plaintiffs' real estate expert and credited the testimony of the Chadwick Beach expert, but stated only that they "found [his] testimony to be more creditable [than plaintiffs'] expert and that the neighbors would suffer substantial loss in property value."

The judge then found that the minority ZBA members erred in discrediting plaintiffs' expert's opinion "without offering any rational explanation" and in "summarily accepting" the Chadwick Beach expert's opinion. The judge further rejected the latter's opinion as unsupported by any sound factual basis, because:

Sopko stated the differences in construction [between monopoles and lattice towers] would only have a 'nominal effect' on the diminution in real estate values. He failed to offer any foundation based on facts or data to support his conclusion that lattice type towers with external hardware, respectively 25 and 270 feet taller, would be comparable in their visual impacts to the tower proposed by [p]laintiffs.

We agree. The ZBA's summary rejection of plaintiffs' expert's opinion and blind acceptance of the Chadwick Beach expert's opinion failed to comply with governing law. No remand for reconsideration was required because the record clearly compelled reversal of the ZBA's action and, thus, the judge acted appropriately in deciding the matter. Cf. Bd. of Adjustment of Weehawkin, supra, 370 N.J. Super. at 335. While the Chadwick Beach expert could properly opine that lattice-style towers would have a negative impact on surrounding real estate values, he had no basis for reaching such a conclusion with respect to monopole towers. Therefore, the ZBA acted in an arbitrary, capricious, and unreasonable manner in crediting his opinion.

Without the Chadwick Beach expert's opinion, the ZBA was presented with only bare allegations that the monopole would negatively affect property views and values. In light of the strong proofs on the positive criteria, these alleged negative effects were insufficient to warrant denial of the variance. On balance, grant of the use variance would not cause a substantial detriment to the public good.

V. Last, the Chadwick Beach Homeowners contend that the judge erred in reversing the ZBA's denial of the conditional use variances because he failed to recognize that adding a cell tower to an already overburdened marina would merely intensify the existing conditional use, which already required multiple variances. We disagree.

Zoning boards have the power, "[i]n particular cases for special reasons, [to] grant a variance to allow departure from [zoning] regulations . . . to permit . . . deviation from a specification or standard . . . pertaining solely to a conditional use." N.J.S.A. 40:55D-70(d)(3). To obtain such a variance, an applicant must present, with respect to the "special reasons," proof sufficient to satisfy the board of adjustment that the site proposed for the conditional use, in the context of the applicant's proposed site plan, continues to be an appropriate site for the conditional use notwithstanding the deviations from one or more conditions imposed by the ordinance . . . . Thus, a conditional-use variance applicant must show that the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems.

The thrust of the proof addressed to the negative criteria is similar. In respect of the first prong of the negative criteria, that the variance can be granted "without substantial detriment to the public good," N.J.S.A. 40:55D-70, the focus is on the effect on surrounding properties of the grant of the variance for the specific deviations from the conditions imposed by ordinance. "The board of adjustment must evaluate the impact of the proposed [conditional-] use variance upon the adjacent properties and determine whether or not it will cause such damage to the character of the neighborhood as to constitute 'substantial detriment to the public good.'" In respect of the second prong, that the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), the board of adjustment must be satisfied that the grant of the conditional-use variance for the specific project at the designated site is reconcilable with the municipality's legislative determination that the condition should be imposed on all conditional uses in that zoning district. [Coventry Square, Inc. v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 298-99 (1994) (alteration in original) (citations omitted).]

Here, as the judge found, in denying the conditional use variances, the ZBA made no relevant findings of fact, and it did not apply the governing law as set forth in Coventry Square. Therefore, remand was appropriate. See Medici, supra, 107 N.J. at 23, 26; Bd. of Adjustment of Weehawkin, supra, 370 N.J. Super. at 332-35; Smith v. Fair Haven Zoning Bd. of Adjustment, 335 N.J. Super. 111, 123 (App. Div. 2000).

Further, the ZBA's ultimate grant of the conditional use variances is supported by the record. The marina has been in that location for over forty-five years, in much the same condition as at present. While it is a conditional use in the GB Zone, some of the requested variances were necessary merely to permit existing buildings to remain in their current locations. Others were necessary for the marina to function. On remand, the ZBA considered these factors in granting the conditional use variances.

The only variance that the intervenors specifically complained about was the one variance required to permit boat storage on Lots 57 and 57.01 with only a twenty-foot setback from Strickland Boulevard, as opposed to the thirty-five feet required. The ZBA ruled that boat storage must remain at least thirty-five feet from Strickland Boulevard, and to enforce this condition, it mandated installation of a fence thirty-five feet back from the roadway, and plantings between the fence and the roadway. It also mandated that the applicants have a boat-storage plan approved by the Bureau of Fire Prevention, and that boat storage not interfere with the cellular compound. Plaintiffs initially complained about the requirement for a fence and the prevention of parking and boat storage within the thirty-five-foot setback, but they withdrew their complaint.

Overall, the evidence supports a conclusion that the site would accommodate the problems associated with the marina use even though the proposal does not comply with the conditions the ordinance established to address those problems. There was no evidence that granting the conditional use variances would damage the character of the neighborhood and thus cause substantial detriment to the public good, nor was there evidence that granting the variances would substantially impair the intent and purpose of the zone plan and zoning ordinance.

The thrust of the Chadwick Beach Homeowners' argument is a complaint that the marina is not a good neighbor; that it does not comply with existing code requirements, in particular with respect to parking, and the Township does nothing to enforce compliance. Those enforcement issues are misplaced, however, because they have no bearing on whether the marina should be allowed variances to the zoning ordinance's conditional use requirements. Nevertheless, on the second remand from the Law Division, the ZBA noted these enforcement concerns and stated that with a site plan and boat storage plan on file with the Township, "policing of the marina will now be possible."

Finally, the Chadwick Beach Homeowners complain that the cell tower would intensify the existing use. However, as Mesquite and T-Mobile note in their brief for A-4682-08, the concept of intensification of a use relates to non-conforming uses. See, e.g., Avalon Home & Land Owners Ass'n v. Borough of Avalon, 111 N.J. 205, 211 (1988); Bonaventure Int'l, Inc. v. Borough of Spring Lake, 350 N.J. Super. 420, 435 (App. Div. 2002). The marina is not a non-conforming use, however; it is a permitted, conditional use. See N.J.S.A. 40:55D-3 (defining "[c]onditional use"); Coventry Square, supra, 138 N.J. at 287 (stating that conditional uses are not prohibited uses; they are "permitted at those locations in the zone where the use meets the conditions set forth in the zoning ordinance"). Therefore, the concept of intensification is inapposite.

In any event, the Chadwick Beach Homeowners are unconvincing in their argument that a cell tower, which is an almost entirely passive use, would intensify the existing marina use. At most, the cell tower reduces the space available for parking and boat storage. However, the applicants presented evidence that the marina would have sufficient parking and storage space even with the cell tower constructed. Therefore, we find no error in the judge's reversal of the ZBA's denial of the conditional use variances and its remand for findings of fact and application of the governing legal standard.

Affirmed.


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