Kingwood Township Volunteer Fire Co. Number One v. Board of Adjustment

Citations: 272 N.J. Super. 498; 640 A.2d 356; 1993 N.J. Super. LEXIS 926

Court: New Jersey Superior Court Appellate Division; September 16, 1993; New Jersey; State Appellate Court

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Kingwood Township Volunteer Fire Company Number One and Bell Atlantic Mobile Systems, Inc. (B.A.M.S.) have filed an action in lieu of prerogative writs against the Board of Adjustment and the Township of Kingwood, seeking to overturn the Board's denial of a use variance. The plaintiffs aim to replace an existing 75-foot communications tower with a 197-foot tower to enhance cellular coverage and improve Fire Company communications, as required by B.A.M.S.'s FCC franchise agreement. They also seek approval for a 12-foot by 30-foot building for equipment, along with necessary parking and an easement for site access. The proposed tower and building would be enclosed by an eight-foot chain link fence and buffered by white pines.

The Board held hearings in January and February 1992, ultimately denying the variance request on March 10, 1992, concluding that the expansion of the nonconforming fire company tower was not inherently beneficial and that the site was unsuitable for B.A.M.S.'s intended use. The Board cited N.J.S.A. 40:55D-70(d), stating that the applicants did not satisfy the positive and negative criteria required for a use variance. Under N.J.S.A. 40:55D-70(d)(2), to obtain a use variance for expanding a nonconforming use, an applicant must demonstrate "special reasons" (positive criteria) and that the variance will not harm the public good or the zoning plan (negative criteria). The term "special reasons" is broadly interpreted to promote land use regulation purposes and general welfare, with different requirements for inherently beneficial uses, which only need to meet the negative criteria.

The standard of review for a board of adjustment's denial of a use variance begins with a presumption of validity, where the board's decision is only reversible if it is found to be arbitrary, capricious, or unreasonable. Courts typically defer to the board's judgment, acknowledging its specialized knowledge of local conditions. However, if the record contains substantial evidence contradicting the board's findings, this presumption may be set aside, leading to a determination of reversible abuse of discretion.

In this case, the board determined that cellular communications do not constitute an inherently beneficial use, impacting B.A.M.S.'s ability to meet the positive criteria under N.J.S.A. 40:55D-70(d)(2). This conclusion contradicts recent judicial trends recognizing telecommunications as inherently beneficial. B.A.M.S. cited two unpublished trial court decisions which supported this view, finding cellular communications to satisfy the positive criteria. The decisions referenced earlier cases, including Yahnel v. Board of Adjustment of the Bor. of Jamesburg and Alpine Tower v. The Mayor and Council of the Bor. of Alpine, which emphasized the community welfare benefits of improved telecommunication services and the necessity of modern communication infrastructure.

Nynex Mobile and Bell Atlantic Mobile reference the rulings in Yahnel and Alpine Tower, which support use variances aimed at promoting telephonic communications as inherently beneficial. Although Alpine Tower did not categorically define promoting telecommunications as inherently beneficial, it recognized telecommunications as a regional public benefit that justifies a finding of "special reasons." The evolving case law over thirty years signifies a broader societal understanding of inherently beneficial uses, indicating that proposed use variances for telecommunications, bolstered by uncontroverted expert testimony, should be deemed beneficial as a matter of law.

The Board mistakenly concluded that cellular phones, being expensive and primarily used by affluent individuals, do not fulfill a compelling local need. It stated that cellular telephones are not classified as a public utility and are economically inaccessible to many, particularly low-income individuals. This demonstrates the Board's limited perspective on public welfare and inherently beneficial uses, which was criticized by the Supreme Court in a related case involving a head trauma center. The Court emphasized that vital regional or local institutions should not be obstructed by exclusionary municipal regulations.

Furthermore, the Board's denial of B.A.M.S.'s use variance exemplifies the indefensible parochial interests condemned in Sica. Lastly, the Board incorrectly imposed an enhanced standard of proof for reviewing negative criteria testimony, which is not applicable when an inherently beneficial use is established, as clarified by the Supreme Court in Sica.

Courts in both the Appellate and Law Divisions ruled that Medici’s enhanced standard of proof does not apply to inherently beneficial uses, as seen in relevant cases involving congregate care facilities and low-income housing conversions. The Board's denial of the use variance for B.A.M.S. was based on an erroneous belief that it needed to provide enhanced proof to counter negative criteria. B.A.M.S. presented substantial, uncontroverted expert testimony indicating that low-impact uses would not harm the township’s zoning plan or the surrounding community, asserting that such uses do not lead to traffic congestion, water contamination, or other health issues. The Board, however, dismissed B.A.M.S.'s credible testimony in favor of less credible opposition claims, which were undermined by the financial interests of the opposing witnesses in nearby properties. The Board’s comparison of testimony lacked support from the record, particularly as the opposing witness admitted to having no expertise in relevant areas. B.A.M.S.'s expert provided a solid basis for discussing lighting requirements for towers, while the planning expert characterized the area as sparsely developed and predominantly rural, a fact supported by photographic evidence. The Board's resolution stated that the proposed 197-foot tower would significantly adversely impact the AR-2 Zone and contradict the area's character and zoning intent, concluding that the applicant did not sufficiently prove that the tower would not be a substantial detriment to the public.

The Board determined that the proposed 197-foot tower, painted red and white with flashing aircraft lights, would significantly disrupt the rural character of the AR-2 Zone due to its visual intrusion. However, the Board's conclusion lacked credible evidence, as no substantial testimony was presented to support claims of adverse community impact, such as diminished property values. Conflicting testimonies regarding the area's classification as rural or commercial, particularly related to a nearby aeronautical facility, were not adequately addressed by the Board, violating N.J.S.A. 40:55D-10(g). The application aimed to expand an existing nonconforming use, which typically receives more favorable consideration than entirely new uses. The benefits to the Kingwood Township Fire Company from the expanded tower further highlight the unreasonable nature of the Board’s denial.

The four-prong Sica procedure for balancing beneficial use and negative criteria was outlined. This involves identifying the public interest, assessing potential detrimental effects, considering conditions to mitigate those effects, and weighing positive against negative criteria to determine if the variance would cause substantial detriment to the public. In this case, the public interest is significant, as the tower would enhance cellular communications, benefiting business, personal, and emergency communications.

The antenna tower has a minimal detrimental effect on the rural environment. The applicant imposed reasonable conditions, such as eliminating strobe lights on the tower and planting eight-foot pines for screening. The balance of positive and negative criteria favors permitting the tower's inherently beneficial use, as there are no significant negative criteria to counter its benefits. The tower requires an unstaffed, landscaped building for support, which is unobtrusive and does not significantly increase traffic, noise, or pollution. The use variance for B.A.M.S. can be granted without conflicting with zoning ordinances or plans. The Board of Adjustment's previous denial of the variance was deemed arbitrary and unreasonable, leading to its reversal, allowing for the construction of the 197-foot tower. While unpublished opinions lack formal legal authority, they provide guidance when based on published opinions, as seen in the reference to Sica v. Bd. of Adj. of Tp. of Wall. In Sica, inherently beneficial uses were identified, and the expanded communications tower supports emergency communication for the Fire Company. Although the Board's resolution denying the variance predated Sica, the principles laid out in Sica and other cases clarify that inherently beneficial uses require a balancing of positive and negative impacts. Since there is no significant negative impact identified, further remand to the Board for findings is unnecessary, as the record is already conclusive.