New Brunswick Cellular Telephone Co. v. Township of Edison Zoning Bd. of Adjustment

• Decision Date: 07 February 1997
• Citation: 693 A.2d 180,300 N.J.Super. 456
• Parties: NEW BRUNSWICK CELLULAR TELEPHONE COMPANY d/b/a Comcast Cellular One, Plaintiff, v. TOWNSHIP OF EDISON ZONING BOARD OF ADJUSTMENT, Defendant.
• Court: New Jersey Superior Court

Page 456

300 N.J.Super. 456

693 A.2d 180

NEW BRUNSWICK CELLULAR TELEPHONE COMPANY d/b/a Comcast Cellular One, Plaintiff, v. TOWNSHIP OF EDISON ZONING BOARD OF ADJUSTMENT, Defendant.

Superior Court of New Jersey, Law Division,

Middlesex County.

Decided Feb. 7, 1997.

Gregory J. Czura, Ringwood, for plaintiff.

John M. Lore, Dunellen, for defendant (DeMarco and Lore, attorneys).

WOLFSON, J.S.C.

I. FACTUAL BACKGROUND

New Brunswick Cellular Telephone Company d/b/a Comcast Cellular One, ("Comcast") appeals from a decision of the Zoning Board of Adjustment of the Township of Edison ("Board") denying its application for a variance from the requirement that cellular towers not be located within one thousand (1,000) feet of any school or residential dwelling. ¹ The proposed cellular communications facility consists of an 80 foot high freestanding monopole with twelve (12) sectorized antennas and an equipment shelter, on 1.37 acres in the LI zone. ²

Hearings were held on Comcast's application before the Board on May 30, 1995, September 27, 1995, and October 17, 1995. At the hearings, testimony was presented by several witnesses on behalf of the applicant that: 1) the site of the proposed facility would be approximately 100 feet away from the nearest adjacent residential area; 2) there were no known health hazards related to the proposed installation inasmuch as the anticipated radio wave emissions would be approximately 635 times below that permitted by the New Jersey Administrative Code; 3) an additional tower was needed in the Edison area due to the large number of telephone users, causing the existing capacity of the cellular system to become overloaded; and 4) the use of cellular transmissions was important to assist local emergency squads, fire departments, the police and the 911 system.

On October 17, 1995, the Board denied Comcast's variance application. A Complaint in Lieu of Prerogative Writs was thereafter filed on January 26, 1996, seeking to reverse the Board's denial. That denial was vacated by this Court on July 12, 1996, and the matter was remanded back to the Board for reconsideration in accordance with the standards set forth in Coventry Square v. Westwood Zoning Bd. of Adjustment, 138 N.J. 285, 650 A.2d 340 (1994) and Sica v. Bd. of Adjustment of Tp. of Wall, 127 N.J. 152, 603 A.2d 30 (1992).

On September 17, 1996, the Board again considered the plaintiff's application and affirmed its prior decision to deny the variance. The resolution memorializing the Board's decision concluded that the applicant had failed to demonstrate that the deviation from the requirements of the ordinance was justified, ³ and concluded that the application would adversely impact the Zone Plan and the Master Plan of the Township of Edison.

II. THE STANDARD OF REVIEW

In reviewing any decision of a zoning board, the court's power is tightly circumscribed. In recognition of the fact that local officials are "thoroughly familiar with their community's characteristics and interests and ... are undoubtedly the best equipped to pass initially on such applications for variance," Ward v. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954), a board's decisions, when factually grounded, are cloaked with a presumption of validity, which presumption attaches to both the acts and the motives of its members. Public bodies, because of their peculiar knowledge of local conditions, are thus allowed wide latitude in the exercise of the discretion delegated them under Municipal Land Use Law. N.J.S.A. 40:55D-1 through 136.

So long as there is substantial evidence in the record, the court may not interfere with or overturn the factual findings of a municipal board. Even when doubt is entertained as to the wisdom of the Board's acceptance of certain evidence or its rejection of other testimony, there can be no judicial declaration of invalidity absent a clear abuse of discretion by the board. Pullen v. So. Plainfield Planning Bd., 291 N.J.Super. 303, 312, 677 A.2d 278 (Law Div.1995), aff'd, 291 N.J.Super. 1, 6, 676 A.2d 1095 (App.Div.1996). Consequently zoning determinations may be set aside only when the court has determined the decision to be arbitrary, capricious or unreasonable. Medici v. BPR Co., 107 N.J. 1, 15, 526 A.2d 109 (1987); Kramer v. Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965).

On the other hand, however, a board's determination or interpretation regarding a question of law is subject to a de novo review by the courts, Grancagnola v. Planning Bd. of Twp. of Verona, 221 N.J.Super. 71, 75-76 n. 5, 533 A.2d 982 (App.Div.1987), and is entitled to no deference since a zoning board has "no peculiar skill superior to the courts" regarding purely legal matters. Jantausch v. Bor. of Verona, 41 N.J.Super. 89, 96, 124 A.2d 14 (Law Div.1956) aff'd, 24 N.J. 326, 131 A.2d 881 (1957); Pagano v. Zoning Bd. of Adjustment, 257 N.J.Super. 382, 396-97, 608 A.2d 469 (Law Div.1992).

III. CONDITIONAL USE VARIANCE UNDER N.J.S.A. 40:55D-70(d)(3)

N.J.S.A. 40:55D-70(d)(3) provides that a "special reasons" variance is required if there is a deviation from a specification or standard pertaining solely to a conditional use. While the proposed cellular tower was found to be a permitted conditional use, the Board required the applicant to apply for a (d)(3) variance since the tower would exceed the 1,000 foot distance limitation applicable to conditionally permitted telecommunication towers in the LI zone.

Coventry Square, supra, 138 N.J. at 287, 650 A.2d 340, established the standards for reviewing an application to deviate "from a specification or standard ... pertaining solely to a conditional use" under N.J.S.A. 40:55D-70(d)(3). In developing the standards, the Supreme Court recognized that a conditional use could not be viewed in the same light as uses which are prohibited throughout the zone. Since a conditional use is not prohibited, it need not meet the stringent standards applicable to a d(1) commercial-use variance which the court summarized in Medici v. BPR Co., supra, 107 N.J. at 9-18, 526 A.2d 109. Still, both the d(1) and the d(3) variances require the applicant prove "special reasons" and satisfy the negative criteria. However, in a d(3) context, the primary focus is not on the use itself, which is permitted, but rather on the effect of non-compliance with a condition pertaining solely to the conditional use. Coventry Square, supra, 138 N.J. at 287, 650 A.2d 340.

Instead, the Board below rejected the application, in part, because Comcast did not address whether a suitable alternative location for the proposed tower existed. While such a burden might arguably be imposed in a d(1) context where the claimed "special reason" is "particular suitability", it is plainly inapplicable where the applicant's proposed use is either permitted or conditionally permitted, or where an inherently beneficial use is involved, which itself, satisfies the "special reasons" requirement. Compare, Mocco v. Job, 56 N.J.Super. 468, 477, 153 A.2d 723 (App.Div.1959) (insufficient showing that particular site must be location for the proposed d(1) use variance) and Medici, supra, 107 N.J. at 24, 526 A.2d 109 (in a commercial (d)(1) variance application, "special reasons" requires proof that the subject property was "particularly suitable" for the proposed, prohibited use); with, New Brunswick v. Old Bridge, 270 N.J.Super. 122, 127 n. 3, 636 A.2d 588 (Law Div.1993) (applicant's failure to consider alternative or even more suitable locations has no relevance where special reasons are not grounded in "particular suitability" but rather are satisfied by inherently beneficial nature of the proposed use).

The burden thus required to obtain or sustain a (d)(1) variance is far more onerous than that imposed where the use is permitted, albeit subject to conditions. Coventry Square, supra, 138 N.J. at 298, 650 A.2d 340 (burden of proof required to sustain a use variance is "too onerous" for a conditional use variance). By way of contrast, an applicant's inability to comply with a particular condition often will not materially affect the appropriateness of the site for the conditional use. Coventry Square, supra, 138 N.J. at 297, 650 A.2d 340. It is therefore evident that the lawful focus in this case was not whether there were other, "more suitable" sites, but rather, whether the appropriateness of the applicant's site was materially affected by its inability to comply with a distance limitation which applies only to towers and satellite dishes but not to any of the other conditionally or completely permitted uses in the zone. Id. at 298, 650 A.2d 340.

Nevertheless, applying the Coventry Square analysis, and considering the inherently beneficial nature of the tower, it cannot reasonably be concluded from the evidence in this record that this deviation affected the overall suitability of this site for the proposed facility. Within the same zone, far more intrusive industrial uses are permitted, all with substantially greater negative impacts, none of which are subject to a 1000 foot buffer requirement. Examples of such uses which are permitted in the zone include: three-story office buildings, scientific and research laboratories; manufacturing, processing, finishing, fabrication and the assembly of products; warehousing and distribution centers; packaging and bottling plants; coal storage plants; machine shops; and newspaper and printing establishments. Furthermore, conditionally permitted uses in the zone include transportation facilities, truck depots, and railroad freight yards, all of which require only 50 foot buffers from residential or other lot lines. Finally, because the tower would be obscured from most of the residential area, the continued suitability of the site cannot reasonably be disputed.

While N.J.S.A. 40:55D-70(d) does not expressly require a balancing of the positive and negative criteria, where, as here, the requested variance involves an...