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Tag Archives: Zoning Board of Adjustment

Judge Slams ZBA Denial of Tower

A superior court judge has overruled the Midland Park, N.J., Zoning Board of Adjustment’s denial of a monopole proposed by T-Mobile and Verizon Wireless to be sited in the parking lot of a shopping center.

The ZBA claimed that the site would exacerbate the shopping center’s parking shortage and would abut a residential zone, “within feet of a single family home.” Additionally, the board claimed that the applicants failed to establish the unavailability of an alternative site and of alternative technologies.

Justice Menelaos Toskos was having none of it. He said the carrier had brought in expert witnesses, while board made arbitrary judgments based on unsubstantiated conjecture.

“The board heard credible testimony from all the expert witnesses that resolved this issue in favor of locating the monopole on the property,” Justice Toskos wrote. “As such, the board cannot unreasonably reject their testimony on bare allegations or unsubstantiated beliefs. Cell zoning boards do not have carte blanch to reject an application based on conjecture that a possible alternative site is both suitable and available.”

In their vote against the tower, members of the board cited visual impact and noise as part of their reasoning. The proposed location of the monopole was chosen, however, to maximize the distance from the residential area. Commercial buildings were to be used as a buffer to obscure the tower, according to testimony presented by the applicants. The judge chastised the board’s aesthetic reasoning for rejecting the monopole.

“Although aesthetic concerns can be a relevant consideration in making a zoning decision … the board had to clearly and concisely address the aesthetic concerns by articulating factual findings supported by expert testimony and make a reasoned determination,” he wrote. “There was no consideration given to the stealthing technique employed,” Justice Toskos wrote.

At the beginning, the siting process was marked by a spirit of cooperation. The proposed tower actually began as two applications. Verizon Wireless and T-Mobile had each filed for 90-foot towers, virtually across the street from each other. At the request of the municipality, the carriers came together and filed for a single 110-foot structure. At the request of the board, the height was increased to 120 feet to accommodate two additional carriers in the future. Additionally, Verizon agreed with a board request to locate its generator on top of one of the buildings, which eliminated any loss of parking spaces.

The good will must have been lost, however. After being read in nine separate meetings, however, the application to construct a 120-foot monopole was denied by a vote of 4 to 3. In a second vote, the original application for a 110-foot monopole had four members vote in favor and three against, but failed to get the needed five-vote super majority.

The BZA will appeal the superior court judge’s decision.