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T-Mobile Northeast LLC v. Township of Freehold Zoning Board of Adjustment

October 17, 2011

T-MOBILE NORTHEAST LLC, (F/K/A OMNIPOINT COMMUNICATIONS, INC.), A WHOLLY OWNED SUBSIDIARY OF T-MOBILE USA, INC., PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF FREEHOLD ZONING BOARD OF ADJUSTMENT, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1199-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2011

Before Judges Lihotz, Waugh and St. John.

The Zoning Board of Adjustment (Board) of the Township of Freehold (Freehold) appeals from the January 3, 2011*fn1 Law Division judgment, rejecting the Board's decision and granting variances and site plan approval to T-Mobile Northeast (T-Mobile), a wholly owned subsidiary of T-Mobile, USA, Inc. We affirm substantially for the reasons expressed by the trial judge in her opinion.

We ascertain the following facts and procedural history from the record on appeal. T-Mobile is licensed by the Federal Communications Commission (FCC) to provide digital mobile telephone services in the Freehold and Monmouth County areas. T-Mobile identified a coverage gap in Freehold. After analyzing suitable sites, T-Mobile negotiated a lease to construct a 120 foot monopole, attach cellular antennas thereto, and place equipment cabinets within a fenced compound, all to be located at Block 8, Lot 5, 169 Robertsville Road, Freehold (the Site).*fn2

Freehold Zoning Code, Chapter 190, Article XII (Zoning Code) establishes that wireless telecommunications towers that are not municipal facilities may be conditionally permitted in the M-1 Industrial Zone. The Site was located in the R-120 zoning district, which permits single family dwellings, certain farm uses, and public buildings and parks, necessitating a use variance.

T-Mobile applied to the Board for a use variance and site plan approval. The Board conducted public hearings on September 25, 2008, October 30, 2008, November 13, 2008, December 11, 2008, March 12, 2009, April 23, 2009, October 8, 2009, October 22, 2009, and November 12, 2009.

In the public hearings before the Board, T-Mobile presented the testimony of six witnesses, five of whom were admitted as experts. We briefly review this evidence.

Glenn Pierson, a radio frequency engineer, testified that a telecommunications facility was necessary within the designated search area, because there was a "gap in coverage." This testimony was corroborated by the introduction of a propagation map, which reflected those areas of Freehold which had insufficient coverage, a fact the Board accepted in its findings. Pierson also related T-Mobile's efforts to find an acceptable site. He described three locations that were considered, the YMCA, Freehold's Lake Topanemus Park, and the Site.

Sean Russell, T-Mobile's site acquisition specialist, was charged with investigating the YMCA and Topanemus locations and instructed to seek out a third location. Neither Freehold nor the YMCA were willing to lease their property to T-Mobile. Russell described his additional location efforts, which involved driving within the search area, looking for a third site. He identified the Site, located in the center of TMobile's search ring, because it appeared to be a large non-residential property. Regarding alternate locations, Russell testified that, for the most part, the entire search ring was residential.

According to John Colagrande, T-Mobile's licensed engineering expert, the monopole would be located within a locked, forty feet by twenty feet chain link compound. The compound would be located twelve feet from the side yard property line and forty-six feet from the rear yard property line, which would require a variance from the side yard and rear yard set back requirements set forth in the Zoning Code. The monopole's location would be 998.8 feet from the road and 378.1 feet from the nearest residential structure.

Timothy M. Kronk, T-Mobile's expert planner, testified that the Site is approximately eight acres. He described the permitted uses in the R-120 zone, which did not include the proposed project. Kronk explained that, other than municipal property, all areas of the search ring were zoned residential. He related the distances to the nearest residences located from each side of the monopole.

Kronk analyzed the positive and negative criteria for the balancing test as set forth in Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 165-66 (1992). He stated that the Site was particularly suited for the project due to its location in the search ring and because no other existing structures in the ring would be appropriate to eliminate the coverage deficiency. Further, the Site was one of the largest lots in the ring, and located in a three-acre minimum zone. He also addressed the non-residential ...


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