October 22, 2012
NEW YORK SMSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFF-RESPONDENT,
ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF COLTS NECK, DEFENDANT-APPELLANT, AND THE TOWNSHIP OF COLTS NECK, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3272-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 10, 2012
Before Judges Yannotti and Harris.
This appeal of an action in lieu of prerogative writs involves the recurring land use problem of finding an appropriate location for modern telecommunications infrastructure, here a 130-foot monopole (the facility).*fn1
Defendant Zoning Board of Adjustment of the Township of Colts Neck (the Board) appeals from the Law Division's January 23, 2012 judgment rejecting the Board's decision and granting variances and site plan approval to plaintiff New York SMSA Limited Partnership d/b/a Verizon Wireless (Verizon Wireless). We affirm.
In December 2009 Verizon Wireless filed an application with the Board for use variance relief, dimensional variance relief, and site plan approval for a wireless telecommunications facility to be placed on the almost-seventy-acre campus of Colts Neck High School. The land is located in the municipality's AG Agricultural District, which generally permits -- as a principal use -- wireless telecommunications towers and antennas.
However, this use is also subject to the requirement that all new wireless telecommunications facilities must be located on property "owned, leased or otherwise controlled by the Township of Colts Neck (excluding active recreational parks, large scale preserves and cemeteries and schools)[.]" Thus, a use variance pursuant to N.J.S.A. 40:55D-70(d)(1) was required.*fn2
The Board conducted two public hearings on the application in March and April 2010.*fn3 Verizon Wireless presented the sworn testimony of four witnesses: William Perry, a site acquisition consultant; Ronald Igneri, a professional engineer; Dominic Villecco, a radio frequency engineer; and William Masters, Jr., a professional planner. Although one member of the public testified, the Board did not call any witnesses. Nevertheless, it did, as its memorializing resolution indicated, "receive guidance from its [p]lanner, Tim Anfuso, and its radio frequency expert, Bruce Eisenstein."*fn4
At the conclusion of the second hearing, the Board voted to deny the application. In its subsequently-adopted resolution, the Board based its decision on its conclusion that Verizon Wireless failed to demonstrate site suitability, that is, it did not believe a gap in service existed, and even if it did, Verizon Wireless "provided no testimony of any good faith effort to investigate alternate technologies or alternate sites including the farm to the south of the subject property." Verizon Wireless sought review in the Law Division shortly thereafter.
After a limited remand for the Board to consider the unavailability of the adjacent farmland, which was owned by the municipality but not offered for lease, the Board again denied the application. This time, the Board found that Verizon Wireless had again failed to demonstrate site suitability by evidence of a gap in its wireless service. It also concluded, as it had in its first resolution, that a use variance would "result in a substantial detriment to the public good." The Board explained that it was "persuaded from the photographic exhibits presented by [Verizon Wireless] that there [would] be substantial negative impacts upon the surrounding residential community." Although the Board never exactly explained the nature of those "substantial negative impacts," we surmise that they relate to an undesirable visual environment being engendered by the height of the proposed monopole. Additionally, the Board noted that part of its analysis of the application's negative attributes included the mere fact that the governing body had made the legislative decision to bar telecommunications facilities from school grounds. No further explanation was provided, nor did the Board explicate how the governing body's legislative decision to allow such telecommunication uses on the adjacent farmland affected the Board's calculus of the negative criteria under N.J.S.A. 40:55D-70(d).
After trial, the Law Division judge reversed the Board's decision, finding, among other things, the Board's conclusion that Verizon Wireless failed to demonstrate a gap in service was "not supported by the evidence." Furthermore, she held that the evidence after the remand demonstrated site suitability, and the record provided little to suggest otherwise.
The judge further concluded that Verizon Wireless had satisfied the positive and negative criteria of N.J.S.A. 40:55D-70(d). After reviewing the totality of the evidence under the lens of our State's extensive wireless telecommunications jurisprudence, the judge stated the following:
The [c]court finds that Verizon [Wireless] established that there was a coverage gap in the area, that the proposed site would fill the coverage gap and that the proposal will not pose a substantial detriment.
The [c]court finds that the Board disregarded undisputed evidence presented by the applicant. The resolution was not based on evidence in the record and therefore its findings pursuant to the Sica[*fn5 ] test were fundamentally flawed.
Additionally, pursuant to Puleio v. N. Brunswick Twp. Bd. of Adj., 375 N.J. Super. 613, 621 (App. Div.) (holding "[i]n essence, the "c" variances are subsumed in the "d" variance"), certif. denied, 184 N.J. 212 (2005), the judge held that Verizon Wireless did not have to separately "prove a [N.J.S.A. 40:55D-70(c)] variance." Moreover, she found "that testimony presented by Verizon [Wireless] showed that except for the height variance all other variances were de [minimis]." Finally, she declared the Board's decision to be "arbitrary, capricious, and unreasonable."
Consequently, the judge entered judgment "approving the variance and site plan application." This appeal followed.
On appeal, the Board contends that the trial judge erred by, in essence, arrogating to herself the fact-finding function reserved to the Board by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. It argues that the judge (1) failed to appropriately defer to the Board's findings, (2) ignored the presumption of validity of the Board's action, and (3) improperly substituted its judgment for that of the Board. The Board's main grievance lies in whether Verizon Wireless proved site suitability through its gap-in-service proofs. Our review of the record satisfies us that the judge approached her judicial role with a correct understanding of the law and rightly exercised the judicial function required in land use-related actions in lieu of prerogative writs.
"[W]hen reviewing the decision of a trial court that has reviewed municipal action, [this court is] bound by the same standards as was the trial court." Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004); see also CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd., 414 N.J. Super. 563, 577 (App. Div. 2010) (applying the same standard of review). Thus, our task on appeal is limited to the substantial evidence standard. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion); see also N.Y. SMSA, L.P. v. Bd. of Adj. of Bernards, 324 N.J. Super. 149, 165 (App. Div.) (holding that a board's findings must be supported by substantial evidence in the record), certif. denied, 162 N.J. 488 (1999).
It is a well-settled principle of land use law that "a decision of a zoning board may be set aside only when it is 'arbitrary, capricious or unreasonable.'" Cell South of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J. 1, 15 (1987)); see also New York SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[P]ublic bodies, because of their peculiar knowledge of local conditions, must be allowed wide latitude in their delegated discretion." Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he proper scope of judicial review is not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Ibid. In addition, "[b]ecause variances should be granted sparingly and with great caution, courts must give greater deference to a variance denial than to a grant." Weehawken, supra, 370 N.J. Super. at 331 (citing Nynex Mobile Commc'ns Co. v. Hazlet Twp. Zoning Bd. of Adj., 276 N.J. Super. 598, 609 (App. Div. 1994)). "[A]n applicant bears a heavy burden in overcoming a denial," Pierce Estates Corp. v. Bridgewater Zoning Board of Adjustment, 303 N.J. Super. 507, 515 (App. Div. 1997) (internal quotation marks omitted). In this case, we conclude that the evidence presented in support of Verizon Wireless's challenge to the Board's decision is compelling.
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 v. Bd. of Adj. of Wall, 127 N.J. 152, 164 (1992); see also Sprint Spectrum, L.P. v. Zoning Bd. of Adj. of Leonia, 360 N.J. Super. 373, 386 (App. Div. 2003). Our Supreme Court has declined to treat wireless telecommunication facilities as inherently beneficial uses. See Cell South, supra, 172 N.J. at 90-91; Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 328-31 (1998). Accordingly, wireless carriers seeking to construct monopoles must satisfy the positive criteria to obtain a use variance under the MLUL, which requires an applicant to prove that there exist "special reasons" to allow departure from the zoning regulations. See Cell South, 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 Adj., 160 N.J. 1, 14 (1999), and Verizon Wireless holds the appropriate FCC licenses. Thus, the proposed use promotes the general welfare. See 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").
Distilled to its essence, the primary issue on appeal is whether Verizon Wireless demonstrated particularized site suitability. The Board's conclusion that it failed in the endeavor is belied by the record evidence. Verizon Wireless proffered unrebutted credible testimony, which was neither internally inconsistent nor factually implausible, which indubitably established 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, 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). Here, the Board presented no such competent expert testimony, and Eisenstein's "guidance" enhanced, rather than detracted from, Verizon Wireless's burden of proof.
Villecco, Verizon Wireless's radio frequency expert, provided testimony that was "clear, cogent, and informative." Weehawken, supra, 370 N.J. Super. at 338. In addition, Villecco provided two written reports containing both propagation maps and call data for the affected area. Eisenstein neither contradicted Villecco's findings nor did he provide testimony or a report of his own.
In fact, Eisenstein stated that he generally relies on propagation maps and stated that areas on Verizon Wireless's maps showed a degradation in service. Eisenstein added that it was the first time he had seen call data provided in an application for a new monopole; he found it appropriate. Furthermore, Eisenstein stated that Villecco testified "correctly" about the way a wireless carrier designs a network.
While there is "no bright line test" for a gap in service, the gap
must be more substantial than "de minimis dead spots within a larger
service area." N.Y. SMSA Ltd. v. Twp. of Mendham Zoning Bd. of
Adjustment, 366 N.J. Super. 141, 161 (App. Div. 2004).*fn6
Viewing the propagation maps and other evidence provided, it
is clear that the gap existed and was appropriate to serve as the
predicate for the trial judge's correct determination of
particularized site suitability.
We similarly find no error in the judge's conclusion that Verizon Wireless 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 wireless telecommunications 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, supra, 127 N.J. at 166).
To determine whether the negative criteria outweigh the positive criteria, our courts have applied the following balancing test:
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. [Sica, supra, 127 N.J. at 165-66 (citations omitted).]
The Board's contention that the monopole will have a significant adverse visual impact upon surrounding properties is belied by the record. Masters testified that the primary potential detrimental effect is a visual one since the facility is unmanned, continuously monitored, and has routine maintenance only every four to six weeks. To address the visual impact, Masters prepared photo simulations from different vantage points. He also prepared photo simulations showing alternate structure types, including a simulated flagpole, a silo, and a cluster mount monopole. Verizon Wireless was "willing to construct any of these structures if they're so made a condition of any approval[.]" Thus, Masters assessed the property, saying "based upon the . . . overall size of this property, the significant setbacks of this property, that the visual impact does not cause substantial detriment to the public good." Other than the Board's subjective aesthetic views, which were untethered to the evidence, there was nothing to suggest that the erection of the monopole would be a substantial detriment to the zone plan and zoning ordinance.
From the record presented to the Board, we are satisfied that the Law Division judge conducted a correct and proper review of the use variance application. Her conclusions about the arbitrary, capricious, and unreasonable decision of the Board are unassailable.
In like vein, although we do not fully agree with the trial judge's reasoning, she nonetheless properly granted the dimensional variances for lot and building coverage. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (appellate court may affirm based on grounds other than those relied upon by the trial judge). The rationale expressed by the judge -- quoting dicta in Puleio, supra, 375 N.J. Super. at 621 -- was that [g]enerally, application[s] for a "c" variance and a "d" variance cannot coexist. If the application is for a use not permitted in the zone, the bulk regulations designed for that zone cannot be applicable to the intended use . . . . In essence, the "c" variances are subsumed in the "d" variance.
We think this goes too far because of the risk that by automatically "subsuming" dimensional variances into (d)-series variances boards may lose sight of significant planning concerns that can arise in a given case. Cf. O'Donnell v. Koch, 197 N.J. Super. 134, 146 (App. Div. 1984) (noting that while not every use variance application subsumes the bulk requirements of the local zoning ordinance, the trial judge's conclusion correctly found that "the bulk provisions were subsumed in the grant of this [use] variance application"). Indeed, the MLUL provides no express authority for subsuming certain variances with others. Cf. N.J.S.A. 40:55D-76(b) (providing that a bifurcated use variance application that requires site plan or subdivision approval must satisfy the negative criteria language of N.J.S.A. 40:55D-70).
On the other hand, the dimensional variances were accurately characterized by Masters as de minimis. Building coverage increased by 0.01 percent, from 6.14 percent to 6.15 percent, and lot coverage increased 0.29 percent, from 17.82 percent to 18.11 percent. In absolute numbers, the application proposed to add less than 400 square feet of coverage to a almost-seventy-acre parcel.*fn7 The disparity is significant.
Weighing the competing interests at stake results in an affirmance of the Law Division's decision. Given the appropriateness of the grant of the use variance and the inconsequential nature of the dimensional variances, Verizon Wireless's evidence clearly supported the positive and negative criteria of N.J.S.A. 40:55D-70(c)(2). See Lang v. Zoning Bd. of Adj. of N. Caldwell, 160 N.J. 41, 57 (1999) (recognizing that the grant of such a variance is appropriate when the benefits of the deviation outweigh any detriment). Our review of the record establishes that Verizon Wireless is entitled to the coverage variances because to grant them would advance the purposes of the MLUL and there are no substantial detriments associated with the minimal discordances.