Daily Development for Monday, November 24, 2003 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ZONING AND LAND USE; PROCEDURE; APPEALS; STANDING: A property owner cannot appeal denial of a use variance for telecommunications purposes when the telecommunications applicant withdraws, because even though such most variances are not personal but run with the land, the specialized issues involved in telecommunications variances preclude permitting such variances to be used by subsequent providers. The Spinnaker Condominium Corporation v. Zoning Board of the City of Sea Isle City, 357 N.J. Super. 105, 813 A.2d 1282 (App. Div. 2003) A condominium association leased roof space to a telecommunications company for the location of antennae and related equipment. The telecommunications company applied to the municipal zoning board for a conditional-use variance and its application was denied. It declined to appeal, having found an alternate site for its facility, but the condominium association filed an action in lieu of prerogative writs challenging the board's denial. That raised the issue as to whether the association had standing to file its action. Under the applicable court rule, cases must be prosecuted in the name of the real party in interest. The "real party in interest rule is ordinarily determinative of standing to prosecute an action." In essence, "a litigant must have a sufficient stake in the matter and face '[a] substantial likelihood of some harm' from an unfavorable decision." Even though New Jersey courts "generally have set a fairly low threshold for standing," a litigant must show that "there is genuine adverseness between the parties in terms of the litigated controversy." Here, the Court did not believe that the condominium association had standing because it found that the association had not suffered a "substantial likelihood of some harm" as a result of the board's decision. According to the Court, the association was not a licensed telecommunications service provider. Further, the board's decision did not "intrude upon any statutory right held by [the association] to install or operate the antennae on its own." Further, the Court believed that once the telecommunications company chose not to appeal the denial, "it presumably terminated its lease." Consequently, "any economic interest derived from the lease" by the association was extinguished upon its termination. The association argued that its standing was derived from the definition of "developer" under the Municipal Land Use Law. Further, it argued that if the board's action was reversed, and a variance granted, it would enjoy the benefit of the variance because variances, once granted, run with the land. The Court conceded "that use variances attached to the land are not personal to the applicant." On the other hand, the Court pointed out that "an application by a wireless telecommunications provider implicates more than 'property-specific proof.'" Essentially, the uniqueness of a wireless telecommunications application means that the use variance would be specifically related to the technical proof by a particular applicant and would also relate to the presence of a "coverage gap." Therefore, if the association wanted to obtain a use variance, either by reversal of the board's original decision, or by an entirely new application, it would need to present the zoning board with technical evidence specifically related to the particular provider that would utilize its building and a "generic" telecommunications use variance was not be available to the condominium association. Comment 1: Nice try, but it appears that the court got it right. A variance for this kind of use properly should be decided with respect to the individual carrier involved and the conditions existing at the precise time of the variance application. Comment 2: The editor found this case especially interesting because of the reasoning that use variances for telecommunications carriers do not run with the land. It seems to anticipate that every telecommunications carrier will have to meet the various threshold requirements for overturning normal local land use board resistance to these uses. Federal law requires a close analysis of various technical aspects of service area and carrier-specific technology in order to permit the carriers to avoid local hostility. But what if the application fit within a generic variance classification available to other uses as well? It would appear that variance granted pursuant to generic standards ought to run with the land even if they involve telecommunications service. Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. 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