SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Argued October 13, 2004 -- Decided October 27, 2004

PER CURIAM

    Plaintiffs, members of a partnership of wireless communications service providers, applied to the Mendham Township Zoning Board of Adjustment (Board) for zoning variances to construct a 148-foot wireless communications tower on residential property in Mendham Township, located at a site near Route 24 and Conifer Drive. Mendham Township (Township) is a rural community and, with the exception of a very small commercial zone in one of its historic districts, is zoned for residential use.

In applying for site plan approval and variances from local zoning ordinances, wireless communications carriers operating under the Federal Telecommunications Act (FTA) must demonstrate pursuant to the Sprint Spectrum criteria that: 1) there is an existing, significant gap in service within the municipality; 2) their proposal will fill the gap in the least intrusive manner; 3) they have made good faith efforts to investigate alternate technologies and alternate sites that may be less intrusive in the community; and 4) the area is not already being served by another wireless provider.

In July 1998, the Township adopted a zoning ordinance to regulate sites of wireless communications facilities. The ordinance permitted telecommunications towers and antennas only as conditional uses on municipally owned property or on property owned by a public utility company and mandated tower users to co-locate their antennas wherever technically, practically, and economically feasible. The purpose of the ordinance was to protect residential areas from the potentially adverse impacts of cell towers, to minimize the total number of cell towers in the community, and to require towers to be located on non-residential property.

After extensive research and testing, the plaintiffs/cellular carriers selected the Conifer Drive site as the most suitable location for a cell tower. The zoning-application process began in March of 1998 and continued through thirty-one hearings before the Board over a three-year period. At those hearings, experts on behalf of the Township and plaintiffs testified regarding the gap in service within the Township, the site selection, alternate sites, alternate technologies, and miscellaneous considerations. On May 10, the Board voted unanimously to deny the variance and memorialized its decision in a resolution adopted on July 12, 2001. In denying the variance, the Board found that the proposed tower was not particularly suited to the site and that its negative impact on aesthetics and property values would be detrimental to the public good.

On August 28, 2001, plaintiffs filed an action in lieu of prerogative writs in Superior Court, Law Division, alleging that the Board’s decision was not based on substantial evidence, was contrary to established principles of state municipal land-use law, and violated the FTA. Plaintiffs also sought to have the Township’s wireless ordinance declared null and void on the ground that it violated state and federal anti-trust law.

The matter was tried on March 14, 2002, and the trial judge rendered an oral decision on March 27, 2002. Final judgment was entered on April 7, 2002, declaring the Township’s wireless ordinance to be invalid but upholding the Board’s resolution denying the variance. The trial judge determined that the Board erred in finding no need for a tower in the Township. The court also found that plaintiffs’ adequately proved that the proposed Conifer Drive site was suitable for a communications tower. Noting that courts should defer to local boards on such issues, the judge concluded that there was substantial evidence in the record to support the Board’s denial of the variance application. Nonetheless, the trial judge allowed plaintiffs to make an application to re-open the matter if a substantial number of the carriers could not resolve the issues presented within one year.

Plaintiffs appealed to the Appellate Division, arguing that the Board’s denial of their application and the trial court’s affirmance of that denial constituted an effective prohibition of wireless service in violation of the FTA. According to plaintiffs, Sprint Spectrum required the Board to grant their application once they established that there was a significant gap in service and that their proposal was the least intrusive means of closing the gap. Plaintiffs further claimed the trial judge erroneously applied a deferential standard rather than de novo review. The Board argued that de novo review is not appropriate in this case, there is no significant gap in coverage, and its decision did not violate the FTA.

The Appellate Division reversed the decision of the trial court, finding that the Board’s action violated the FTA, which limits the authority of local zoning Boards to render decisions that effectively prohibit wireless communications services. The appellate panel reasoned that plaintiffs had successfully met the Sprint Spectrum criteria and that de novo review is the proper standard for both the trial court and the appellate court in reviewing this matter. Pursuant to the appellate panel’s de novo review, the record confirmed the trial court’s finding that the carriers had presented compelling proofs of the need for a communications tower in the Township. As such, the Board erred in failing to recognize the gap in service and the need to fill the gap within the Township. In addition, the Appellate Division found that the record conclusively establishes that plaintiffs investigated all reasonable alternative technologies, designs, and locations and that the Conifer Drive site is the least intrusive, most suitable location for a wireless tower to fill the gap in service within the Township. The panel was satisfied that any further efforts by plaintiffs to obtain approval to build a wireless communications facility within the Township would be fruitless. The matter was remanded to the Board for a grant of the variance application and for approval of the site plan, pending successful completion of the required federal environmental assessment process.

The Supreme Court granted certification.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in that court’s opinion below. The denial by the Township of Mendham Board of Zoning Adjustment of plaintiffs’ request for a zoning variance to erect a wireless cellular communications tower in the Township violated the Federal Telecommunications Act by effectively prohibiting wireless communications services.

     CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and
RIVERA-SOTO join in this PER CURIAM opinion. JUSTICE ZAZZALI did not participate.
SUPREME COURT OF NEW JERSEY
A-83/ 84 September Term 2003


NEW YORK SMSA LIMITED PARTNERSHIP d/b/a BELL ATLANTIC MOBILE (now VERIZON WIRELESS); SMART SMR OF NEW YORK, INC., d/b/a NEXTEL COMMUNICATIONS, (now NEXTEL COMMUNICATIONS, INC.); SPRINT SPECTRUM L.P.; and OMNIPOINT COMMUNICATIONS, INC. (now a wholly owned subsidiary of VOICESTREAM WIRELESS),

    Plaintiffs-Respondents,

        v.

TOWNSHIP OF MENDHAM ZONING BOARD OF ADJUSTMENT,

    Defendant-Appellant,

and

THE MAYOR AND COUNCIL OF THE TOWNSHIP OF MENDHAM and THE TOWNSHIP OF MENDHAM,

Defendants,

and

FRANCIS WOOD and DAVID HINCKLEY,

Defendants-Intervenors-Appellants.

Argued October 13, 2004 – Decided October 27, 2004

On certification to the Superior Court, Appellate Division, whose opinion is reported at 366 N.J. Super. 141 (2004).

Barry H. Evenchick argued the cause for intervenors-appellants (Walder, Hayden & Brogan, attorneys).

John M. Mills, III, argued the cause for appellant (Mills & Mills, attorneys).

Gregory J. Czura argued the cause for respondents (Czura Stilwell, attorneys; Mr. Czura and Kenneth J. Wilbur, on the briefs).

    PER CURIAM
    The judgment is affirmed substantially for the reasons expressed in Judge Parker’s opinion of the Appellate Division, reported at 366 N.J. Super 141 (2004).
    CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in this opinion. JUSTICE ZAZZALI did not participate.

    SUPREME COURT OF NEW JERSEY

NO. A-83/84    SEPTEMBER TERM 2003
ON CERTIFICATION TO Appellate Division, Superior Court    

NEW YORK SMSA LIMITED
PARTNERSHIP d/b/a BELL
ATLANTIC MOBILE (now VERIZON
WIRELESS); SMART SMR OF NEW
YORK, INC., d/b/a NEXTEL
COMMUNICATIONS, (now NEXTEL
COMMUNICATIONS, INC.); SPRINT
SPECTRUM L.P.; and OMNIPOINT
COMMUNICATIONS, INC. (now a
Wholly owned subsidiary of
VOICESTREAM WIRELESS),

    Plaintiffs-Respondents,

        v.

TOWNSHIP OF MENDHAM ZONING
BOARD OF ADJUSTMENT,

    Defendant-Appellant.

DECIDED October 27, 2004
    Chief Justice Poritz    PRESIDING
OPINION BY Per Curiam    
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY    

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