SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-183-96T5
PIERCE ESTATES CORP., INC.,
Plaintiff-Appellant,
-v-
BRIDGEWATER TOWNSHIP ZONING
BOARD OF ADJUSTMENT,
Defendant-Respondent.
_________________________________________________________________
Submitted May 14, 1997 - Decided August 4,
1997
Before Judges Long, Skillman and Cuff.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County.
Edward J. Johnson, Jr., attorney for
appellant.
Vastola & Fackelman, attorneys for respondent
(Lawrence A. Vastola, on the brief).
The opinion of the court was delivered by
LONG, P.J.A.D.
Plaintiff Pierce Estates Corp. Inc. sought a variance pursuant
to N.J.S.A. 40:55d-70(D) from defendant, Bridgewater Township
Zoning Board of Adjustment (Board) to build a communications tower.
The Board denied the variance. In an action in lieu of prerogative
writs, Pierce challenged the denial which was upheld. This is an
appeal from that decision.
The case began when Pierce filed a development application
with the Board seeking the variances required for it to construct
a radio tower on its property and to continue the existing two
family dwelling use of the lot. A public hearing was held.
The following testimony was adduced at the hearing: Pierce
owns property in the Township of Bridgewater known as lot 41 in
block 7401 on the Bridgewater Township Tax Map, which property is
located on Miller Lane (a private road) and consists of a 10.2 acre
tract of land in the R-50 zone. The property is improved with a
two story dwelling, a garage and a well house. Pierce seeks to
erect a 343 foot high communications tower on the property. The
tower would be located approximately 110 feet from the two family
residential home owned by Pierce and approximately 610 feet from
the northwestern corner of property located on Cram Trail and owned
by David Wang, which is the closest residence to the property. The
elevation of the tower would be 671 feet above sea level. There
would be a roadway constructed to access the proposed tower, as
well as an unmanned service building which would measure 12 feet by
42 feet and would be protected by a six foot high chain link fence.
The tower would be supported by six guy wires anchored to the
ground at six different locations and all of the anchors would be
surrounded by six foot high fences for security purposes. Pierce
claims that "[t]he tower is designed in such a way that, should it
collapse because of high winds or from any other cause, it will not
do any damage to the only home which is in close proximity to the
tower since the tower will fall like a 'carpenter's' collapsible
ruler within itself and will not extend beyond the location of the
various guy anchors, which support the tower."
A report prepared as part of Pierce's site plan application by
James R. Housten, Jr., P.E., L.S., & P.P., indicates that:See footnote 1 (l)
Wastewater management on this site will be apparently unaffected by
this project; (2) no stream encroachment permits are required as
part of the project; (3) the project will not generate any solid
waste to be stored on the site; (4) the project will not have any
impact on the region's air quality; (5) the project will virtually
create no impact to the existing traffic patterns, other than
construction traffic; and, (6) there are no wetlands on the site.
Housten noted that "[t]he obvious unavoidable impact from this
project will be the visual impact of the tower particularly from
the south." He stated that this will be mitigated by "a very thin,
inconspicuous profile" and tree clearing will be kept at a minimum.
Housten reported two short term adverse impacts anticipated from
the construction of the tower: (1) potential for increased soil
erosion when the steep slopes are exposed during construction,
which will be mitigated by soil and sediment control measures
detailed on the site plan; and, (2) noise generated during the
tower's erection, but this will be limited to daylight hours in
accordance with Bridgewater's construction ordinances.
Sandy Drysdale, the owner of a communications service company,
testified with respect to two-way radio systems, cellular phone
systems and pager systems and indicated that there were certain
communication "dead zones" in portions of the area to be serviced
by Pierce's tower. Drysdale stated that she performed studies of
the area in question in an effort to see what is provided by the
existing tower and what would be provided by the proposed tower.
She also "talked with people at Somerset County Medical Center ...
the people at Bridgewater Police ... the office of emergency
management at Somerset County ... personnel at Bridgewater OEM and
with Public Service Electric & Gas Company, all of which have
communication problems." She indicated that the height of the
tower is needed to overcome an obstruction from a mountain ridge
which inhibits communications. She further stated that plaintiff's
tower would not serve as a duplicative coverage source, but rather
an "overlay" or "continuation." She explained that
[w]hat they're trying to do is create a
seamless communication network so that you
don't have dead areas so that in public
safety, a police officer can communicate with
his portable, which is a big problem right
now....
....
... The benefit of this site is because
of its location, its height and the fact that
it has the ability to cover areas that are not
now covered.
On cross-examination, Mrs. Drysdale admitted that as of the
time of the hearing, the County was not interested in using the
tower for 911 communications; the police reported no need for the
tower; there was no signed contract or letter of intent from any
prospective user of the tower; nor was there actual testing
performed with respect to the project.
John Haelig, the president of Pierce, indicated that he
purchased title to the property in 1980 from his aunt. In
describing the idea for the tower project, he stated:
I proceeded into the tower project because I
had noticed that in various communities,
various companies were making applications for
towers and I felt that if I were to build -
they need a tower, they need antennas, and I
felt if I could build one tower in one place
in an area accessible to them by line of sight
and other ways, that it would be more
economically feasible for them to pay rent for
the tower for their antenna then it would be
to build and maintain their own tower.
While Haelig represented that there are persons interested in the
tower, he acknowledged that he had no firm commitments or
contracts. In fact, he testified that the police department and
the local medical center did not currently indicate a need for the
tower, although the people in charge of the 911 operations asked
him to keep them informed of the tower's progress, again without
any form of commitment. When asked about his discussions with the
County regarding the 911 area system, Haelig responded:
The County 911 system has never been
fully developed. I have expressed to them
what my plans are and I have expressed to them
that as a result of Mrs. Drysdale's test, our
indications are that completing the tower, we
could tie together the entire 911 system
including Bernardsville, Far Hills,
Bedminster, the north eastern end of the
township including Millington, Basking Ridge
area, the extreme end of the township in North
Plainfield and we could form a line of sight
to their proposed center on Rowfield Road. We
have line of sight from this property to the
Royce Field property.
Clarence Beverage, a broadcast engineer, testified that the
proposed tower would eliminate the "dead spots" which Drysdale said
existed.
Kenneth Nelson, the professional planner retained by Pierce,
indicated in his testimony that the public good would be minimally
impacted by the proposed tower, and that the zone plan and the
master plan would not be impaired. He also stated:
The tower in question based on the testimony
that has been provided by other witnesses
would indicate that this tower is important in
terms of filling a gap in terms of helping to
further build that seamless communication.
....
It will enhance the health, safety and
welfare of the community. It is an
appropriate location for this type of use and
it is an efficient use of the land. The
height is needed to provide the service that
is contemplated which will include a variety
of two-way radio communication antennas,
paging facilities and potentially cellular
telephone facilities as well as the 911
service that the applicant has indicated he
would certainly allow on the tower.
....
The public will benefit in various ways,
not just as an example with respect to the 911
system which deals directly with health and
safety, but with the convenience and
productivity that this facility will offer to
various businesses and private individuals as
a result of its existence.
Nelson also stated that although the tower would be visible from
certain areas in Bridgewater, the visual impact would not be
dominant or overpowering, especially in light of its narrow
profile, the wooded hillside, and the coloring of the tower which
is being painted in an effort to make it blend in with its
surroundings.
Mark Tinder, a real estate appraiser, offered testimony that
there was no evidence of any adverse impact on economic or real
estate values based on the proximity of land to a tower.
Additionally, Frank Bencivengo, the objectors' real estate expert,
testified that the impact on property value 800 feet from the tower
would be "very little, if any," although he didn't know for certain
as he hasn't studied "every tower and every neighborhood."
Pierce sought the following relief from the Board:
1. A use variance because radio communication towers are not
allowed in the R-50 zone.
2. A variance to allow two structures to be located on one
lot.
3. A frontyard setback variance (the frontyard setback is
presently 35 feet and 75 feet is required).
4. A height variance is requested since the height of the
tower is proposed to be 340 feet and the allowable height
of the tower would be 172 feet, based upon the distance
of the tower to the nearest property line.
5. A variance for lot coverage on steep slopes (9,164 square
feet is allowed and 10,378 square feet is proposed).
6. A steep slope variance (the slopes are greater than 30" where the tower is proposed to be built).
7. A variance to allow construction since the proposed
property fronts on an unapproved and private right of
way.
The Board denied Pierce's application. In its Resolution, the
Board stated:
The applicant is not in the business of
providing telecommunications but proposes a
tower which would be made available to any
company or governmental agency in need of such
a facility. The Board concludes that in order
to apply the inherently beneficial standard
the applicant must demonstrate that a public
need is being served. A proposal to erect a
tower is not in and of itself a use which
inherently benefits the public good. While
the applicant presented testimony that the
site might be suitable for Public Service
Electric and Gas Company, Somerset Hospital,
the Bridgewater Police Department and Rescue
Squad there was no testimony that any of these
potential users had expressed interest in the
site or that their needs could not be
satisfied at another site or by the
modification of any existing tower such as
that owned by Somerset County which is in
close proximity to the subject property.
Additionally, the Board found that there were no special reasons
for the granting of this variance, considering, among other things,
the possibility of modification of another tower in close proximity
and the need for significant tree removal.
The trial judge, the Honorable Judge Robert E. Guterl, J.S.C.,
affirmed the Board's decision, stating in part:
The Nynex caseSee footnote 2 ... is distinguished based
upon the fact that there the applicant was in
the business of providing telecommunications,
while Pierce is not. Although Pierce offered
testimony from a number of witnesses and
mentioned public service entities, such as
local police departments and the Somerset
County 911 program, none of these entities
have contracted to use the facilities and it
is speculative that the tower will benefit any
of them.
While it is clear that the tower will be useful for business, such use would not meet the "inherently beneficial" criteria. It is clear from the testimony that the proposed tower has great potential to benefit the public welfare, but it is speculative
nonetheless. While in Nynex the applicant
demonstrated its proposal was part of a
seamless network, Pierce can only hope for
such a profitable use....
Pierce also argues that other "special
reasons" required the grant of this variance.
... It is not surprising that the Board was
not convinced. ... Pierce was held to an
enhanced burden of proof under Medici v. BPR
Co.,
107 N.J. 1 (1987). In denying the
application on this ground, the Board relies
upon the fact that the tower utilizes
protected steep slopes and would provide an
adverse visual impact to other properties in
the neighborhood. There is no need to resolve
the issue of whether Pierce has properly
satisfied the negative criteria, since the
Board is found to have denied the application
for the use variance on proper grounds.
Pierce appeals from this decision on the ground that it is
arbitrary, unreasonable and capricious. We disagree and affirm.
The decision of a zoning board should be sustained by a reviewing court if it is founded on adequate evidence; the decision will be set aside only if it is arbitrary, capricious, or unreasonable. Burbridge v. The Governing Body of the Township of Mine Hill, 117 N.J. 376, 385 (1990). Given its "peculiar knowledge of local conditions," a board must be accorded wide latitude in the exercise of its delegated discretion. Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965). However, because use variances tend to impair sound zoning, they should be granted sparingly and with great caution. Burbridge, supra, 117 N.J. at 385; Kohl v. Mayor of Fair Lawn, 50 N.J. 268, 275 (1967). For this reason, "a trial judge must give greater deference to a variance denial than to a grant." Nynex Mobile Communications Co. v. Hazlet
Township Zoning Bd. of Adjustment,
276 N.J. Super. 598, 609 (App.
Div. 1994). Consequently, "an applicant bears a heavy burden in
overcoming a denial." Ibid.
Pursuant to N.J.S.A. 40:55D-70(d), a use variance will be
granted if: (l) "special reasons" exist and (2) the variance "can
be granted without substantial detriment to the public good and
will not substantially impair the intent and the purpose of the
zone plan and zoning ordinance." See Sica v. Board of Adjustment
of the Township of Wall, l27 N.J. l52, l55-56 (l992); Burbridge,
supra, ll7 N.J. at 384-85. Proof of both positive and negative
criteria is required by the statute. Sica, supra, l27 N.J. at l56.
The statutory phrase "special reasons" has been broadly
defined as those criteria that promote the purposes of zoning, see
N.J.S.A. 40:55D-2, with the promotion of the general welfare being
the zoning purpose which "most clearly amplifies the meaning of
special reasons." Medici v. BPR Co., l07 N.J. l, l8 (l987).
However, where the use is not of a type which itself provides
special reasons, there must be a finding that the general welfare
is promoted because the proposed use is particularly suited to the
location for which the variance is sought. Kohl, supra, 50 N.J. at
279. Otherwise, "if the general social benefits of any individual
use -- without reference to its particular location -- were to be
regarded as an adequate special reason, a special reason almost
always would exist for a use variance." Id. at 280.
When a proposed use is "inherently beneficial," special
reasons are said to exist and the positive criteria are met. In
other words, applicants for such uses are deemed to meet the test
of promoting the general welfare without proof that the proposed
site is particularly suitable for the proposed use. Sica, supra,
127 N.J. at 165; Nynex, supra, 276 N.J. Super. at 608. Inherently
beneficial uses are usually non-commercial, non-profit and service
oriented. Nynex, supra, 276 N.J. Super. at 609. However, certain
profit-making ventures have been considered to be inherently
beneficial. Ibid. These include a private, for-profit senior
citizen facility, a 120-bed nursing home, a private day care
center, and a sewage treatment plant which served a commercial
trailer park. Sica, supra, 127 N.J. at 159; Nynex, supra, 276 N.J.
Super. at 609.
Pierce argues that the recent decision by this Court in Nynex,
supra, supports the conclusion that the proposed tower is an
inherently beneficial use. In Nynex, we upheld a trial judge's
determination that the applicant had proved that the uses to which
its proposed mobile communications facility were to be put were
inherently beneficial. Nynex, supra, 276 N.J. Super. at 609-12.
In so doing, we recognized the public importance of improving
telecommunications, tracing the progression of this concept from
Yahnel v. Board of Adjustment of Jamesburg,
79 N.J. Super. 509, 518
(App. Div.), certif. denied,
41 N.J. 116 (1963), in which we stated
that "[i]mproved telephonic communications are obviously a subject
matter of high relationship to the welfare of the entire
community," through Alpine Tower Co. v. Mayor of Alpine,
231 N.J.
Super. 239, 249 (App. Div. l989), in which we opined that "[t]he
regional public benefit derived from plaintiff's communications
facility and the need for the proposed new building to house the
sensitive modern electronic equipment used in the facility provide
additional grounds for a finding of `special reasons.'" Nynex,
supra, 276 N.J. Super. at 610-11. We also took note of Sica,
supra, l27 N.J. Super. at 347, where it was specifically recognized
that the uses in Yahnel and Alpine Tower "inherently serve the
public good."
Pierce's position in this case appears to arise out of a
misreading of Nynex. It apparently views Nynex as establishing
that any proposal to build a communications tower automatically
vaults the "inherently beneficial" threshold. Not so. A mobile
communications tower is nothing more than a structure. As with any
other structure, its proponent bears the burden of proving that the
use to which it will be put meets the statutory criteria. To be
sure, Nynex recognized improved telecommunications as inherently
beneficial; however, this does not end the inquiry. Where, as
here, the proponent postulates that its proposed tower will improve
telecommunications, it must prove that the tower will actually have
that effect in order to meet the inherently beneficial standard.
That is what occurred in Nynex where the plaintiff, who was in the
business of providing telecommunications, proved that its tower
would be utilized to fill identified gaps in service coverage,
improve mobile phone communications, and provide real emergency
benefits. Nynex, supra, 276 N.J. Super. at 6l2. Here, on the
other hand, as the Board and the trial judge concluded, Pierce was
simply unable to show that any public need would actually be served
by the proposed tower.
After determining that the uses to which the proposed tower were to be put were not inherently beneficial, the Board concluded that Pierce had also failed to establish that the tower was particularly suited to the location for which the variance was sought. Judge Guterl agreed, noting that the testimony was unconvincing in demonstrating the particular uniqueness of the property to the use:
For example, the topographical conditions are referred to but it seems evident that there was other property with even superior topography. The rugged terrain and isolation of the property are also said to contribute to the suitability of this property, but it is difficult to understand or believe this ruggedness is either unique or helpful to the applicant. This is not a high traffic application and the negative visual impact is certainly not the greatest with respect to nearby properties, but rather is clearest from some distance.
In our view, there was ample evidence to support the Board's
finding that the use was not particularly suited to the location
for which the variance was sought. See Kohl, supra, 50 N.J. at
279. In sum, the determination of the trial judge that the Board's
decision was neither arbitrary, capricious nor unreasonable is
legally unassailable.
Affirmed.
Footnote: 1 Housten testified before the Board on November l5, l994. Footnote: 2 Nynex Mobile Communications Co. v. Hazlet Township Zoning Bd. of Adjustment, 276 N.J. Super. 598 (App. Div. 1994).