Daily Development for Thursday, December 5, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

TELECOMMUNICATIONS; CELL TOWERS: New Jersey court again refuses to find that a telecommunications tower is an inherently beneficial use, holding that maximum use of expert testimony is appropriate as is development of a substantial record demonstrating both the negative and positive criteria.

Cell South of New Jersey, Inc. v. Zoning Board of Adjustment of West Windsor Township, 172 N.J. 75, 796 A.2d 247 (2002).

A board of adjustment denied a cellular telephone company's application for a conditional use variance to replace an existing 83-foot wireless communication tower with a 152-foot tower. The lower court concluded that denial of the use variance was arbitrary, capricious, and unreasonable. It granted the variance. The Appellate Division reversed.

The matter was then appealed to the New Jersey Supreme Court. The existing tower was on a 3.25-acre tract of land located in an industrial area zoned for research offices and light manufacturing use.

Communication towers were permitted in the zone as a conditional use, but could be no taller than 55 feet. The site in question was adjacent to a rail line. The only other structures on the property were an auto repair garage and a storage facility. The closest residential dwelling was about 370 feet away. The applicant sought the variance to improve and expand cellular telephone coverage within the area and to permit another wireless provider to install its antenna on the monopole.

The applicant presented testimony from six experts to the effect that the existing 83-foot tower did not provide adequate service because it did not clear the surrounding tree line. The testimony was that a taller tower "would not only improve the quality of wireless service, but would expand the tower's capacity, reducing the number of 'dropped' or blocked calls along the Route 1 corridor." Two professional planners also testified stating that "replacing the current tower with a taller one would not affect surrounding areas in a negative way... ." In addition to the applicant's experts, the municipality's planning consultant testified "that the new tower would not affect area traffic. He stated that the installation of an antenna was an appropriate land use [in the zone]. He also opined that the community would benefit from the collocation" of antennae atop the proposed tower because it would reduce the total number of monopoles within the municipality.

Several residents testified in opposition to the application, focusing on the negative visual impact of the proposed tower and the potential impact of the taller tower on property values. When the board denied the application, it found that the applicant had failed to satisfy the positive and negative criteria required for a variance. It believed that the testimony presented indicated that the current 83-foot high tower was servicing the community adequately. It also believed that the applicant could have explored other alternatives such as using lower towers at multiple other sites or attaching antennas to existing buildings and structures. Thus, the "Board concluded that because the benefit from having better service provided to some of the [applicant's] customers [did] not outweigh the overall aesthetic impact on the area surrounding the tower, [the] variance relief could not be granted without substantial detriment to the public good and that granting the variance would substantially impair the intent and purpose of the zone plan... ." The lower court's reversal was based on the fact that there was no evidence to refute the applicant's claims that it had capacity problems in the area.

The Appellate Division, in its reversal, had concluded that the applicant did not demonstrate that the property was particularly suited to a 152- foot monopole or that there were no alternative sites for its proposed tower.

The New Jersey Supreme Court, even though recognizing that the decision of a zoning board may be set aside only when it is arbitrary, capricious or unreasonable, concluded that the record did not support the Board's denial of the application. Even though it declined to find that wireless communication facilities are inherently beneficial uses, it found, as it had in prior cases, that "the positive criteria [were] satisfied because the site was particularly suited for the use, and that the negative criteria [were] also satisfied because the variance could granted without substantial detriment to the public good." Because 55-foot towers were permitted within the zone, the applicant did not need to prove that the site was particularly suited for the proposed use. This was because the municipality had already determined that monopoles were a permitted use within the zone. The Court, in a prior case, had already determined that a 50-foot increase in the height of a monopole "would not substantially alter" a skyline. Here, the increase was 69 feet and the Court had diminished concern for the visual impact of the cellular tower in an area zoned for industrial uses. Lastly, although a zoning board may reject expert testimony, "[p]roof of an adverse effect on adjacent properties and on the municipal land use plan ... generally will require qualified expert testimony. Bare allegations that the construction of a tower or monopole will cause a decline in property values rarely will suffice."

The Court was invited to again find that mobile communication facilities are inherently beneficial structures. A use is "inherently beneficial" if it is "so universally considered of community value that municipalities should be favorably disposed toward their inclusion." If a proposed use is "inherently beneficial," an applicant automatically satisfies the "positive" criteria and reduces its burden of proof with respect of the "negative" criteria. However, if the use is not "inherently beneficial," the applicant must satisfy not only the "positive criteria," but also the negative criteria by "an enhanced quality of proof." Even though wireless communication had proliferated in the four years since the Court first decided that such a use was not inherently beneficial, the Court felt that wireless communication providers are able to satisfy both the positive and negative criteria under the MLUL and, therefore, "[f]or the present the best course is the current path, one that maximizes the use of expert testimony as appropriate and encourages the development of a substantial record to demonstrate both the positive and negative criteria."

Comment: Note that telecommunications providers get a leg up anyway because the Congress has recognized the "inherent benefit" in their activities and have placed greater burdens on zoning and planning agencies that restrict the location of telecommunications facilities. The federal provisions tend to place a burden on the agency seeking to restrict to have clear evidence supporting their conclusions, but do not go so far as to reduce or eliminate the need for expert testimony by the applicants