NEW CINGULAR WIRELESS PCS, LLC (AT&T) VS. THE ZONINGBOARD OF ADJUSTMENT OF THE TOWNSHIP OF CHATHAM(L-3095-14, MORRIS COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2467-15T1
NEW CINGULAR WIRELESS
PCS, LLC (AT&T),
Plaintiff-Respondent,
v.
THE ZONING BOARD OF
ADJUSTMENT OF THE
TOWNSHIP OF CHATHAM,
Defendant-Appellant.
_______________________________
HAYLEE MESSING, JAY MESSING,
JULIANNA BRENNEN, JAMES BRENNEN,
CATHERINE T. PORTER, JAMES D.
PORTER, JR., SHANNON BRENDLE,
JERRY BRENDLE, MARYBETH
LEITHEAD, ED LEITHEAD, and
GEORGE SARLE,
Intervenors-Respondents.
________________________________________________________________
Argued May 9, 2017 – Decided August 16, 2017
Before Judges Rothstadt and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Docket No. L-
3095-14.
Stephen H. Shaw argued the cause for
appellant.
Judith A. Fairweather argued the cause for
respondent (PinilisHalpern, LLP, attorneys;
Ms. Fairweather, of counsel and on the brief;
Christopher J. Quinn, on the brief).
Robert F. Simon argued the cause for
intervenors-respondents (Herold Law, PA,
attorneys; Mr. Simon, Robert J. Donaher, and
George W. Crimmins, III, on the brief).
PER CURIAM
Plaintiff New Cingular Wireless PCS, LLC filed an application
with defendant Zoning Board of Adjustment of the Township of
Chatham seeking site plan approval and several variances.
Plaintiff required the approval of its application so that it
could attach wireless cellular antennas to an existing water tower
and install ground equipment that would be housed on a concrete
pad. The water tower already had installed on it antennas owned
by other cellular providers. According to plaintiff, the
additional antennas were required to fill a 2.2-square-mile
cellular coverage gap. Defendant denied plaintiff's application,
plaintiff filed this action challenging the denial and, after a
trial de novo, the Law Division reversed and granted plaintiff's
application, finding that defendant's decision was "arbitrary,
capricious and unreasonable" because it was unsupported by any
credible evidence.
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On appeal, defendant contends that the court misapplied the
applicable standard of review and "substituted its own judgment
for that of the board." Intervenors/Objectors agree and also
argue that defendant properly denied plaintiff's application
because there was only a de minimis lack of cell coverage, the
reasons for denial outweighed any benefit of approval, and the
court erred in its legal determinations.
We conclude that defendant's and intervenors' arguments are
without merit. We affirm substantially for the reasons stated by
Judge Stuart A. Minkowitz in his comprehensive, twenty-three page
statement of reasons attached to the court's January 7, 2016 order
entering judgment in favor of plaintiff.
The facts derived from the record can be summarized as
follows. Plaintiff determined that it needed to fill a 2.2-square-
mile gap in cellular coverage by installing antennas on an existing
105-foot tall water tower located in a residential zone in an
established neighborhood. The water tower is visible throughout
the community and already houses other communication antennas. It
is on a 100' x 100' landlocked lot.1 Plaintiff's antennas were to
be placed at about four feet from the top of the tower, below the
1
New Jersey American Water Company owns the water tower. The
property where the water tower is located requires access over an
existing easement on adjacent property.
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existing antennas owned by others that extended above the top of
the water tower. The attached equipment was to be painted to
match the water tank's color, and the ground equipment was to be
constructed inside an existing fenced compound, enclosed by a
noise-reducing 9.5-feet sound barrier, and obscured by existing
landscaping.
Because the project did not comply with Chatham's land use
ordinances, plaintiff filed an application with defendant seeking
site plan approval, a use variance, a height variance, a
conditional use variance, and bulk setback variances. The
application was deemed complete, and defendant considered the
application at public hearings held over the course of nine
evenings.
At the hearings, plaintiff presented the testimony of several
experts. Yvan Joseph, an expert in radiofrequency engineering
testified that the proposed site was chosen over ten other sites
that were considered because it is particularly well suited to
provide coverage for the 2.2-square-mile area that was currently
without coverage. The other locations were either below the
ridgeline or not tall enough to supply the coverage needed to the
area. According to Joseph, there would still be "gaps in service"
totaling ".9 miles of unserved area" that would have to be covered
by another facility.
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Antonio Gualtieri, P.E., plaintiff's site engineer, testified
about anticipated noise levels emanating from the proposed
equipment servicing the antenna. He confirmed that cooling fans
would create some level of "buzz[ing]" or "hum[ming]." Matthew
Murello, an acoustical engineer expert also testified about the
noise and stated that it would be below permissible decibel levels.
He explained that an approximately ten-feet-tall sound barrier
would be part of the installation and would keep any nighttime
levels to a minimum.
Mark Tinder, an experienced New Jersey licensed appraiser,
testified about whether the project would have an impact on
property values. In his opinion, there was no measurable impact
on New Jersey properties in relation to cellular sites. However,
he conceded that he did not perform any formal appraisals and
relied instead on market analysis prepared by realtors because
there was no information available as to comparable home prices
comparing a pre-antenna construction value to a post-antenna
construction one.
Plaintiff's planner, Jim Dowling, P.P., testified as to the
lack of other suitable sites for the antennas and the project's
lack of any negative impact on the neighboring community.
Plaintiff also presented testimony from Ronald Petersen, P.E., an
FCC compliance expert who confirmed there was no danger from any
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radio wave emissions from the antennas and John Pavlovich, P.E.,
a traffic engineer, who confirmed there were no traffic issues
created by the project. Plaintiff also introduced into evidence
photo simulations showing the anticipated visual impact of the
project.
Defendant's experts also testified at the hearing. Its
radiofrequency expert, Dr. Bruce Eisenstein, P.E., agreed that
plaintiff had "a gap in coverage" and that this site would fill
the coverage gap better than any of the ten other proposed
locations. Its own acoustical engineer, Norman Dotti, P.E.,
confirmed that the proposed sound barrier would in fact maintain
any noise from the proposed equipment to within permitted noise
levels, preventing neighboring home occupants from hearing the
noise.
In addition to expert testimony, a group of objectors attended
and voiced their opinions at the public hearings. They disputed
that there would be minimal visual impact and that there was a gap
in telecommunications coverage. One objector, Nancy Cook, an
experienced New Jersey realtor, testified that the project would
negatively affect real estate values. She based her opinion on
comments made to her by two potential buyers and a price reduction
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in one home, which she attributed solely to its proximity to a
"cell tower."2
At the conclusion of the hearings, defendant rejected
plaintiff's expert's opinions as to the project's impact on
property values, finding Tinder's testimony "was counterintuitive
and defied common sense," and that even with the sound barrier a
neighboring house would be subjected to "a distinctive electronic
hum."3 It voted to deny plaintiff's application, reasoning that
alternative sites were better suited and any resulting lack in
coverage would be "de minimis," property values would go down, and
the installation of antennas and equipment would have a negative
visual and noise impact. Defendant adopted a resolution
memorializing its denial that stated:
The Board finds that the requested variances
cannot be granted without substantial
detriment to the public good and will
substantially impair the intent and purpose
of the Zone Plan and of the Zoning Ordinance.
The aesthetic impacts of the proposed antennae
and 9.5 foot high noise barrier surrounding
the equipment compound and the devaluation of
property in the neighborhood will undermine
the residential character of the neighborhood
2
She was not produced as an expert on behalf of defendant. She
introduced herself and stated that she was a realtor, and she
initially stated that she did "appraisals of property," but then
corrected herself, stating she was a "realtor [who prepared] market
analysis."
3
In addition to the board considering the evidence adduced at
the hearings, its members also conducted a site inspection.
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and residential zoning. Weighing the positive
criteria and negative criteria in accordance
with the balancing test set forth in Sica v.
Board of Adjustment, 127 N.J. 152 (1992), the
Board has determined the grant of the proposed
variances would cause substantial detriment to
the public good.
In his statement of reasons, Judge Minkowitz applied the
appropriate standard of review and the provision of the MLUL, and
addressed each of defendant's reasons for denying the application,
including visual impact, availability of alternative sites, real
estate values, and noise impact, and found no support for any of
them. He determined that defendant's reliance upon substantially
inferior speculative sites to be unreasonable and the claimed
negative visual impact of the antennas and ground equipment to be
minimal. Judge Minkowitz explained defendant's rejection of
plaintiff's appraiser's opinion to be unreasonable, especially in
light of its acceptance of a realtor's opinion based on anecdotal
evidence that was not based on any kind of formal study. He quoted
from the Court's opinion in Smart SMR of N.Y., Inc. v. Borough of
Fair Lawn Bd. of Adjustment, 152 N.J. 309, 334 (1998), and found
defendant's reliance on the realtor's testimony to be analogous
to the Court's rejection of similar testimony in Smart. Finally,
he found defendant's denial based on noise impact to be improper,
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because its own expert agreed with plaintiff's expert that there
would be "no residual noise outside the property line."4
"Our standard of review for the grant or denial of a variance
is the same as that applied by the Law Division." Advance at
Branchburg II, LLC v. Twp. of Branchburg Bd. of Adjustment, 433
N.J. Super. 247, 252 (App. Div. 2013). "In evaluating a challenge
to the grant or denial of a variance, the burden is on the
challenging party to show that the zoning board's decision was
'arbitrary, capricious, or unreasonable.'" Price v. Himeji, 214
N.J. 263, 284 (2013) (quoting Kramer v. Bd. of Adjustment, 45 N.J.
268, 296 (1965)).
In our review, we defer to a municipal board's determination.
"[Z]oning boards, 'because of their peculiar knowledge of local
conditions[,] must be allowed wide latitude in the exercise of
delegated discretion.'" Ibid. (alteration in original) (quoting
Kramer, supra, 45 N.J. at 296). A zoning board's decision
"enjoy[s] a presumption of validity, and a court may not substitute
its judgment for that of the board unless there has been a clear
4
Addressing plaintiff's claim under the Federal
Telecommunications Act, 47 U.S.C.A. § 332, the judge found that
the same standard applied to defendant's actions and therefore it
violated the federal act by being "arbitrary, capricious or
unreasonable and unsupported by sufficient evidence in the
record." As a result, he did not have to address plaintiff's
claim that defendant's denial of its application "had the effect
of prohibiting the availability of personal wireless services."
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abuse of discretion." Ibid. (citing Cell S. of N.J., Inc. v.
Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)). The level of
deference given to a board's decision to grant a variance is less
than the level of deference given for a denial of a variance.
Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of
Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006) (citing Funeral
Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200, 208 (App. Div.
1999)). "[W]hile we will give substantial deference to [a board's]
findings of fact, it is essential that the board's actions be
grounded in evidence in the record." Fallone Props., LLC v.
Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div.
2004). See also Advance at Branchburg II, LLC, supra, 433 N.J.
Super. at 252 (citations omitted). However, "[w]e are ordinarily
not bound by [its] determination on a question of law." Advance
at Branchburg II, LLC, supra, 433 N.J. Super. at 252 (citing In
re Distrib. of Liquid Assets, 168 N.J. 1, 11 (2001)).
Applying these guiding principles, we find no merit to
defendant's contention that Judge Minkowitz applied the wrong
standard to his review of defendant's denial or that he substituted
his judgment for that of defendant's. Because we agree that
defendant's decision was unsupported by the evidence presented,
we affirm substantially for the reasons stated by the judge in his
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thoughtful statement of reasons. We add only the following
comments.
Plaintiff's application involved the addition of antennas and
the construction of a concrete pad with equipment to an existing
water tower that already serviced communication equipment and was
located in a residential neighborhood. Contrary to facts in the
case law relied upon by defendant and intervenors, plaintiff's
application did not call for the construction of a cell tower or
monopole, which the Court has previously observed "could impose a
. . . substantial adverse impact" that could support a board's
denial of an application. New Brunswick Cellular Tel. Co. v.
Borough of S. Plainfield, 160 N.J. 1, 16 (1999). See also New
York SMSA L.P. v. Bd. of Adjustment of the Twp. of Bernards, 324
N.J. Super. 149, 164 (App. Div.), certif. denied, 162 N.J. 488(1999).
We conclude that Judge Minkowitz correctly found that there
was no support for defendant's determination that plaintiff did
not satisfy the negative criteria and prove that the variance
could be "granted without substantial detriment to the public good
and [that the project would not] substantially impair the intent
and purposes of the zone plan and zoning ordinance." N.J.S.A.
40:55D-70. Plaintiff's evidence included expert testimony that:
(1) there was no danger from radio wave exposure; (2) the project
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would not create a traffic burden; and (3) the equipment cabinets'
noise level, if any, would be below the permitted maximum.5
Moreover, as Judge Minkowitz determined, there was a complete
lack of credible evidence in the form of expert testimony to
support any of defendant's conclusions about the negative
criteria. See N.J.S.A. 40:55D-70(d); New Brunswick Cellular Tel.
Co., supra, 160 N.J. at 15; Smart, supra, 152 N.J. at 336 ("Proof
of an adverse effect on adjacent properties and on the municipal
land use plan . . . generally will require qualified expert
testimony"). As to defendant's rejection of plaintiff's real
estate expert and acceptance of an objector's unsupported
opinions, we recognize, as did Judge Minkowitz, that defendant
"was free to either accept or reject the testimony of those
experts," as long as the decision to do so was "reasonably made."
Ocean Cty. Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment,
352 N.J. Super. 514, 537 (App. Div.) (quoting Kramer, supra, 45
N.J. at 288), certif. denied, 175 N.J. 75 (2002). We concur there
was no basis for defendant to accept the unqualified realtor's
opinion over plaintiff's expert's opinion.
5
The noise level was mitigated by the sound barrier, the
installation of which defendant's planner considered
"substantial." To the extent the Board relied upon the negative
aesthetic impact of the sound barrier, the Board's reliance – as
Judge Minkowitz noted – was inappropriate because the sound barrier
did not require variance approval.
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Finally, we address the issues raised by defendant about its
findings that the installation for the proposed antennas would
only provide de minimis improvement to coverage and that other
sites were available to plaintiff. Plaintiff did not have to
prove the existence of a "significant" gap in service in order to
satisfy the positive criteria.6 "No case interpreting and applying
New Jersey's MLUL has required a wireless communications carrier
to prove the existence of a significant gap in coverage in order
to satisfy the positive criteria of N.J.S.A. 40:55D-70(d)." New
York SMSA, L.P. v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319,
336 (App. Div. 2004) (emphasis in original). Nor does the
applicant have to prove that it used the least intrusive means to
address the gap in coverage. That standard applies to complaints
under the TCA. See New York SMSA Ltd. v. Twp. of Mendham Zoning
Bd. of Adjustment, 366 N.J. Super. 141, 149-50, (App. Div.), aff'd.
o.b., 181 N.J. 387 (2004); Ocean Cty. Cellular Tel. Co., supra,
352 N.J. Super. at 528 n.4, 528-29. However, in conducting the
Sica balancing test applicable to the negative criteria, a board
is entitled to consider the extent of the need for an additional
cell tower — that is, the gap in service — balanced against the
6
That standard applies to complaints alleging a violation of
the TCA. See Cellular Tel. Co. v. Zoning Bd. of Adjustment of the
Borough of Ho-Ho-kus, 197 F.3d 64, 75-76 (3d Cir. 1999).
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extent of the harm that will be caused by locating the cell tower
in an area where its presence contravenes the local zoning
ordinance. See New Brunswick Cellular Tel. Co., supra, 160 N.J.
at 14; New York SMSA, L.P., supra, 370 N.J. Super. at 336.
Applying that criteria to the evidence before defendant in
this case, it is clear that plaintiff satisfied the positive
criteria, N.J.S.A. 40:55D-70(d), and the proposed site was the
best choice to provide the needed coverage. Plaintiff's proposal
did not call for the construction of new cell tower or monopole
and the other sites considered by defendant to be viable
alternatives did not provide any more than sixty-percent of the
2.2 miles of coverage plaintiff was trying to remediate. We find
no evidence that the remaining forty-percent was de minimis.
Affirmed.
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