October 17, 2011
T-MOBILE NORTHEAST LLC, (F/K/A OMNIPOINT COMMUNICATIONS, INC.), A WHOLLY OWNED SUBSIDIARY OF T-MOBILE USA, INC., PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 use of the subject property, and opined that the positive aspects of the proposed use outweighed any visual detrimental impact.
Regarding the negative criteria, Kronk stated wireless telecommunications use was a "benign commercial use" that possessed none of the traditional negative impacts associated with land development. Specifically, such a use would not create noise, glare, odor, vibration or other "noxious characteristics" or require workers on the Site. However, Kronk conceded the use would have "a negative visual impact."
Nevertheless, he opined that the Board could grant the variances without a substantial detriment to the public good.
Dan Collins, an expert in radio frequency emissions and FCC compliance, offered his opinion for T-Mobile that the facility complied with FCC regulations.
The Board presented the testimony of Douglas Fishman, a radio frequency engineering expert, who agreed with the technical information provided by Pierson. Members of the public expressed, among other things, concerns regarding the visual impact of the monopole and compound.
On November 12, 2009, the Board denied T-Mobile's application and subsequently memorialized its decision. The resolution stated: the property is most likely being used for the property owner's landscaping business, which is a non-permitted use; the applicant argued the property in question was a commercial property, when in fact, any commercial operations beyond farming are not permitted; the property owner would be rewarded for its unlawful behavior because this site would not have been chosen sine que non its illegal use of the property; the Planner for the applicant failed to address the existing use or illegal use of this site and the integration of these two uses at this location;
the Planner for the applicant failed to offer evidence as to how this site would accommodate the deviation from the conditional use standard. The monopole was proposed to be located no more than 20.8 feet from the side yard setback of an existing residential property where 120 feet is required. The applicant's Planner made no attempt to show how this site could accommodate this deviation from the conditional use standard; the applicant failed to convince the Board that it had made a careful evaluation of the properties located within the search ring.
The Board could not evaluate whether the applicant made a good faith effort to locate the monopole on the YMCA property as the applicant refused to supply the Board with any evidence of their offer. The Board concludes that the applicant did not adequately seek out other sites where the tower might be better suited. In addition, the Board concluded that the applicant's professionals provided contradicting testimony throughout the numerous hearings on this point; and the Board finds that the site was not particularly suited for the proposed tower because of its topography. The applicant's Radio Frequency expert agreed that a better location would have been to the North of this property on higher ground.
T-Mobile filed a Complaint in Lieu of Prerogative Writs, seeking a judgment reversing the Board's determination and declaring that T-Mobile's application be approved, without a remand to the Board. The Board filed an answer, and on December 21, 2010, trial was held. At the conclusion of the trial in the Law Division, the judge concluded that the Board's findings "are without foundation in the evidence, are conclusory, and based on no evidence in the record." Further, she found that "the decision of the Board is arbitrary, capricious, and unreasonable with regard to the use variance and as to the site plan approval."
The judge focused on the evidence presented by T-Mobile's witnesses. She found that "it is obvious from the testimony that [T-Mobile] established the positive criteria. Having done so it is incumbent on the Board of Adjustment to determine whether the negative criteria outweigh[ed] the positive criteria." The trial judge concluded the Board did not appropriately address the negative criteria but "dwelled on the applicant's failure to identify more than three locations, and further, on the issue of whether the existing uses on the subject property were illegal." She also found the Board's allegation that the property was being used in violation of the zoning code was factually questionable, since the operation appeared to be a nursery, and legally irrelevant.
The trial judge addressed whether T-Mobile should have continued searching for other sites, and determined that "no alternative suitable site was identified and any site within the acceptable coverage area would require the same variance." On January 3, 2011, the trial court entered an order reversing the Board's decision and approving T-Mobile's application, without remand to the Board. This appeal followed.
On appeal, the Board contends that:
a) T-Mobile's planner's testimony failed to show that the site was particularly suited and the court erred by not finding his report to be net testimony;
b) the trial court misunderstood the Board's findings when the court opined that it was obvious that the positive criteria was met;
c) the court's comment on the Board attorney's advice regarding the enforcement issue was not considered in complete context;
d) the court replaced the Board's opinion with its own in that the court ignored the Board's findings regarding T-Mobile's failure to comply with the good faith test to identify alternative sites and the court ignored the Board's application of the Sica balancing test;
e) the Board's resolution adequately set forth the Board's factual findings properly based on the evidence before the Board and if the court found otherwise, specific comment should have been provided on the observed defects; and
f) the court erred by not remanding this matter to the Board to either re-write its resolution or to impose reasonable conditions.
We determine that the judge's findings are supported by the proofs. We also agree with her analysis and legal conclusions.
Our review of a Zoning Board's decision is limited. Ocean Cnty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521 (App. Div.), certif. denied, 175 N.J. 75 (2002). We apply the same standard of review as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). Thus, the determinations of a zoning board are presumed valid and will be reversed only when the findings are "so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ocean Cnty. Cellular, supra, 352 N.J. Super. at 522 (citation omitted). However, a Board's findings must be supported by "substantial evidence in the record." N.Y. SMSA, L.P. v. Bd. of Adjustment of Bernards, 324 N.J. Super. 149, 165 (App. Div.), certif. denied, 162 N.J. 488 (1999). In addition, because the interpretation of a statute or ordinance presents essentially a legal issue, conclusions of a municipal board on matters of statutory interpretation are not entitled to any particular deference. Atl. Container, Inc. v. Twp. of Eagleswood Plan. Bd., 321 N.J. Super. 261, 269 (App. Div. 1999).
Further, we are mindful that, because of the strong legislative policy favoring land use planning by ordinance rather than by variance, the grant of a "d" variance will be considered the exception rather than the rule. See Cerdel Constr. Co. v. Twp. Comm. of E. Hanover, 86 N.J. 303, 307 (1981). Despite the fact that "an applicant bears a heavy burden in overcoming a denial," Pierce Estates Corp. v. Bridgewater Zoning Bd. of Adjustment, 303 N.J. Super. 507, 515 (App. Div. 1997), the evidence presented here in support of TMobile's challenge to the Board's decision is compelling.
It is well-settled that, in order to obtain a variance pursuant to N.J.S.A. 40:55D-70(d), an applicant must demonstrate both the positive and negative criteria. Sica, supra, 127 N.J. at 164. The positive criteria require the party to prove the "special reasons" for granting the variance. Id. at 156. If the proposed use is "inherently beneficial," the positive criteria are presumptively met. See Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 328 (1998). The presumption is based on the concept that inherently beneficial uses serve the general welfare. See Medici v. BPR Co., 107 N.J. 1, 12-13 (1987).
The Supreme Court has declined to recognize that telecommunications facilities constitute inherently beneficial uses. Smart, supra, 152 N.J. at 331. But, the Court has recognized that an FCC license generally establishes that the use promotes the general welfare. Id. at 336. Nonetheless, an applicant must establish that the proposed telecommunications use is particularly suited for the proposed site. New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999).
In applications for variances and/or site plan approval concerning telecommunications facilities, we have held that the positive criteria are satisfied where the carrier is licensed by the FCC and proffers credible testimony establishing that a coverage gap exists. See Weehawken, supra, 370 N.J. Super. at 340. In determining whether the positive criteria were satisfied, courts have taken into consideration a variety of factors, including: the zoning district; whether the site is centrally located; whether the site already accommodates a monopole; whether competent expert testimony establishes that the existing capacity is inadequate; whether propagation maps demonstrate an inadequacy of signal strength; whether the site redresses a carrier's lack of capacity; and whether there are viable alternative sites. Id. at 338. In considering expert testimony in favor of the application, it is important to note whether there is any competing evidence by an interested party or the Board to counter the applicant's expert testimony. See Ocean Cnty. Cellular, supra, 352 N.J. Super. at 526. In addition, the Board's conclusion on the suitability of a particular site "must be based upon competent expert testimony."
Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 42 (App. Div. 2003) (citation omitted). Here, the Board presented no such competent expert testimony.
To determine whether the negative criteria outweigh the positive criteria, our courts have applied the balancing test set forth in Sica, which requires the following:
First the [zoning] board should identify the public interest at stake. Some uses are more compelling than others . . . . Second, the Board should identify the detrimental effect that will ensue from the grant of the variance . . . . Third, in some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use. If so, the weight accorded [to] the adverse effect should be reduced by the anticipated effect of those restrictions . . . . Fourth, the Board should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good. [127 N.J. at 165-66 (citations omitted).]
Additionally, we have applied the Sica balancing test in residential districts and concluded that minimal visual impact would not constitute a substantial detriment. Ocean Cnty. Cellular, supra, 352 N.J. Super. at 533-34.
Here, applying the appropriate standard of review, we affirm the findings by Judge Patricia Del Bueno Cleary that T-Mobile satisfied the positive criteria, and that the Board's conclusion that the Site was not particularly suited was also not supported by the record. Both Russell and Kronk testified the Site was centrally located in the coverage gap and was particularly suited because there were no other existing structures in the ring that would be appropriate for use to eliminate the coverage deficiency. As the trial judge explained:
With respect to the concept that the applicant should have continued searching for better sites . . . such an inquiry of possible existing sites is problematic, especially as in this case . . . no alternative suitable site was identified and any site within the acceptable coverage area would require the same variance.
In similar circumstances, we have held that a telecommunications
provider need only make reasonable and good faith efforts to find an
alternative, more suitable site. See Ocean Cnty. Cellular, supra, 352
N.J. Super. at 528. A Board cannot base its denial on a provider's
failure to "negate the possible existence [of other sites] that might
have served better and been less intrusive[.]" Id. at 529 (quoting
Bernards, supra, 324 N.J. Super. at 161). See also N.Y. SMSA Ltd. v.
Twp. of Mendham Zoning Bd. of Adjustment, 366 N.J. Super. 141, 163
(App. Div.) ("Zoning boards do not have carte blanche to reject an
application based on conjecture that a possible alternative site is
both suitable and available."),
aff'd o.b., 181 N.J. 387 (2004). We find it unreasonable for the Board
to have concluded that T-Mobile failed to satisfy the particular
The Board asserted the previous denial of the Site owner's request for a variance to use the Site for a landscaping business, and alleged ongoing violation by the owner, should in effect bar T-Mobile from approval of its application. Municipal boards may consider a second application for a variance "if the application contains changes that are 'sufficient.'" Bressman v. Gash, 131 N.J. 517, 527 (1993) (quoting Russell v. Bd. of Adjustment of Tenafly, 31 N.J. 58, 66 (1959)). T-Mobile's application is for a different use than the previous application. The trial judge concluded that the alleged unlawful use of the Site by the owner was "sketchy, at best," that the Site was being operated as a nursery, and as counsel to the Board pointed out, any enforcement action against the Site's owner is "not an issue for this Board in terms of germaneness to a use variance application." We agree.
Because T-Mobile is an FCC-licensed wireless communications carrier and because it established the particular suitability of its proposed Site, it satisfied the positive criteria of N.J.S.A. 40:55D-70(d). The Board made findings that there are "many substantial negative impacts arising from the Site Plan, as the cell tower will impinge on the light, air, and privacy of the surrounding property owners." These conclusory findings were not supported by substantial evidence in the record. Therefore, we agree with the trial judge that the Board's weighing of the positive criteria and negative criteria leading to the conclusion that the grant of the variance would cause a substantial detriment to the public good is arbitrary, capricious, and unreasonable.
As a final point, the Board contends that the testimony of T-Mobile's planning expert was an impermissible net opinion. "An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded." Nextel, supra, 361 N.J. Super. at 43. "However, if an expert provides the whys and wherefores rather than bare conclusions it is not considered a net opinion." Ibid. (quoting Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002) (citations omitted)). The Board did not reject the expert's testimony as a "net opinion" during the hearings nor raise this issue in the Law Division. It is in effect now arguing that the Board and the trial court erred in accepting the testimony into evidence. We decline to consider issues not properly presented at the hearing or trial level, save in exceptional circumstances. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). None are present here. In any event, since TMobile's planning expert provided the whys and wherefores, the point is clearly without merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).