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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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