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New York Smsa Limited Partnership D/B/A Verizon Wireless v. Zoning Board of Adjustment of the Township of Colts Neck

October 22, 2012

NEW YORK SMSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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