(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).
Borough of Fair Lawn Board of Adjustment
Argued October 7, 1997 -- Decided January 26, 1998
POLLOCK, J., writing for a unanimous Court.
The issue in this case is whether Smart SMR of New York, Inc. (Smart), is entitled to a use variance
under N.J.S.A. 40:55D-70(d) to erect a 140-foot telecommunications monopole in an industrial zone in the
Borough of Fair Lawn.
The FCC has licensed Smart to install a digital mobile radio system in the New York metropolitan
area, which includes New Jersey. According to Smart, its digital system is an improvement on cellular
telephone systems.
Smart seeks to locate the monopole on a two and one-half acre site in an industrial zone.
Commercial or industrial uses bound the site on three sides, and single family residences abut the remaining
side. With the exception of public utility structures, no structure in the industrial zone may exceed 40 feet in
height.
Also located in the vicinity of the site is a 90-foot monopole which is used to provide cellular
telephone service, owned by a partnership that includes NYNEX and Bell Atlantic. Before Smart submitted
its application, the Fair Lawn Planning Board decided that NYNEX is a public utility, exempting NYNEX
from the height restrictions. The Board denied Smart's request to be treated as a public utility. That issue
is not before the Court.
Because the Board denied Smart the status of a public utility, Smart sought a use variance. In
support, Smart introduced expert witnesses who testified that the Fair Lawn site was necessary; that Smart's
proposed use constituted an inherently beneficial use; that the electromagnetic radiation emitted would be far
less than that permitted in New Jersey and would not pose any health concerns; and that the monopole
would not have an adverse impact on real property values.
Finally, in response to inquiries from the Board, Smart advised that NYNEX and Smart were willing
to co-locate their antennas on one 140-foot monopole. Smart proposed to tear down NYNEX's existing 90-foot monopole. Thus, the number and location of monopoles would remain unchanged.
Several Fair Lawn residents objected to Smart's application. Some feared exposure to
electromagnetic radiation. Others were displeased with the aesthetics of a 140-foot tower. Still others were
concerned that the monopole would lower property values. They did not, however, present any expert
testimony to the Board.
The Board denied Smart's application for the use variance, finding that the proposed use was not
inherently beneficial because it was for commercial purposes. It also found that no special reasons existed
and that the proposed site was inappropriate for the monopole because it abutted a residential area and
because Smart had failed to explore alternative sites. Finally, the Board concluded that the monopole would
cause substantial detriment to the public good because it was aesthetically displeasing and because
neighboring residents perceived that exposure to radiation would subject them to illness and that property
values would be diminished.
Smart filed an action challenging the Board's decision. The Law Division affirmed. The Appellate
Division reversed, finding the Board's action arbitrary, capricious, and unreasonable. It found that the facility
was both an inherently beneficial use and particularly suited for the site (satisfying the positive criteria of
N.J.S.A. 40:55D:70-(d)). It also found that the use satisfied the negative criteria of N.J.S.A. 40:55D-70(d),
rejecting the Board's conclusion that the monopole, which was merely 50 feet higher than the existing
NYNEX monopole, would be aesthetically displeasing.
HELD: The record establishes that the monopole is a necessary part of an increasingly essential public
service and that the variance may be granted without substantial detriment to the public good. Smart is
entitled to the grant of a variance to construct a communications facility with a 140-foot monopole for the
joint use of Smart and NYNEX at the site.
1. In addition to the Municipal Land Use Law, N.J.S.A. 40:55D-1 to 136, other State and Federal statutes
affect municipal regulation of the location of telecommunications facilities. The New Jersey Radiation
Protection Act, N.J.S.A. 26:2D-1 to 23.4, preempts local regulation of radiation emissions. The
Telecommunications Act of 1996, codified in scattered sections of 15 U.S.C.A., 18 U.S.C.A., and 47 U.S.C.A.,
limits the role of State and local governments in regulating wireless service facilities. (Pp. 13-19)
2. The Court is reluctant to declare a mobile communications facility to be an inherently beneficial use at
this time and on this record. Nonetheless, Smart's application satisfies the positive criteria because Smart
has proved the use is particularly suited for the proposed site. (Pp. 20-26)
3. The Court also concludes that Smart has satisfied the negative criteria. Compelling evidence supports the
conclusion that the Fair Lawn site is particularly suited for the proposed use. Because Smart offered to take
down NYNEX's monopole, the proposed use would result in merely a 50-foot increase in height. In light of
State and congressional legislation, the Board exceeded its authority in crediting the perception of residents
that radiation emissions may cause long-term health effects. Finally, nothing in the record supports the
conclusion that the use would adversely affect property values. (Pp. 26-29)
4. The Court offers the following guidelines for local land use agencies and lower courts in deciding such
cases in the future. Generally, the issuance of an FCC license should suffice to establish that the use serves
the general welfare. If the facility requires a tower or monopole, the applicant must prove that the site is
particularly suited for that use. The Radiation Act and the Telecommunications Act have virtually
preempted local consideration of radiation emissions. Proof of an adverse effect on adjacent properties and
on the municipal land use plan generally will require qualified expert testimony. (Pp. 29-32)
Judgment of the Appellate Division is AFFIRMED as MODIFIED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE POLLOCK's opinion.
SUPREME COURT OF NEW JERSEY
A-
23 September Term 1997
SMART SMR OF NEW YORK, INC.
d/b/a NEXTEL COMMUNICATIONS,
Plaintiff-Respondent,
v.
BOROUGH OF FAIR LAWN BOARD
OF ADJUSTMENT,
Defendant-Appellant.
Argued October 7, 1997 -- Decided January 26, 1998
On certification to the Superior Court, Appellate
Division.
Harold Hoffman argued the cause for appellant.
Gregory J. Czura argued the cause for respondent.
Richard D. Stanzione submitted a brief on behalf of
amici curiae Bell Atlantic NYNEX Mobile, Inc., Sprint
Spectrum, L.P. and Omnipoint Communications, Inc.
(Hiering, Dupignac & Stanzione, attorneys; Mr.
Stanzione and Alison B. Brotman, on the brief).
Robert C. Garofalo submitted a brief on behalf of
amicus curiae Cellular Telephone Company d/b/a AT&T
Wireless Services (Garofalo & Pryor, attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
At issue is whether respondent, Smart SMR of New York, Inc., d/b/a Nextel Communications (Smart), is entitled to a use variance under N.J.S.A. 40:55D-70(d)(“subsection d” or “use variance”) to erect a 140-foot telecommunications “monopole” in an industrial zone in the Borough of Fair Lawn. The Fair Lawn
Board of Adjustment (the Board) denied Smart's application for a
use variance, and the Law Division affirmed. In an unreported
opinion, the Appellate Division reversed. We granted the Board's
petition for certification,
148 N.J. 460 (1997), and now affirm
the judgment of the Appellate Division as modified.
Beneath the surface of this appeal stretches the tension between the need for telecommunications in an increasingly technological society and local land use control of sites for mobile communications facilities. In today's world, prompt and reliable information is essential to the public welfare. Evidencing the need for such information is the proliferation of wireless communications instruments such as mobile phones, which rely on antennas for the transmission of signals. For successful transmission, the antennas often are placed on tall structures such as buildings, towers, or, as here, monopoles. Towers and monopoles, which may reach several hundred feet in height, sometimes exceed height restrictions set by municipal land use ordinances. Consequently, telecommunications carriers may need relief from those ordinances to construct needed towers or monopoles. Ultimately, the selection of a site for a mobile communications facility and the need to erect a tower or monopole may depend on both local considerations and the design of the telecommunications network.
In the present case, Smart's interest in constructing a mobile communications facility with a monopole in Fair Lawn
conflicts with the Board's interest in controlling the size and
location of the monopole. Resolution of the conflict summons an
appreciation of the rights of municipalities to regulate the use
of land within their boundaries, the rights of carriers to
construct and use essential telecommunications facilities, and
the public interest in both reasonable land use regulations and a
reliable telecommunications network.
Guiding us in resolving the conflict are federal and state
statutes as well as judicial decisions. The statutes include the
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136;
the New
Jersey Radiation Protection Act (Radiation Act), N.J.S.A. 26:2D-1
to -23.4, and
the Telecommunications Act of 1996
(Telecommunications Act), Pub. L. No. 104-104,
110 Stat. 56
(cod
ified as amended in scattered sections of 15 U.S.C.A., 18
U.S.C.A., and 47 U.S.C.A.).
The ESMR system is a digital telecommunications system that
provides services similar to those of cellular telephone systems.
According to Smart, its digital ESMR system is an
improvement on cellular telephone systems. The ESMR system
provides clearer signals, enhanced protection against
eavesdropping, as well as paging and dispatch services. Smart
anticipates that trucking companies, livery services, as well as
police, fire, and emergency medical services will use its
dispatch, data, and paging services. Although the Board did not
so find, Smart anticipates that the general public also will use
its services.
The uncontradicted testimony before the Board establishes
that Smart needs a mobile communications facility in Fair Lawn to
operate its ESMR system. Such a system depends on multiple, low-power mobile communications facilities to provide service both to
local communities and to mobile users passing through those
communities. The proposed facility will require construction of
a 140-foot “monopole” (ESMR monopole) for antennas used in
transmitting and receiving ESMR signals. The ESMR monopole would
be narrow, only three-feet wide at the base and less than two-feet wide at the top. Twelve panel antennas measuring 18" x 25"
would be arranged in a triangular support, with four antennas on
each face.
Smart seeks to locate the facility and monopole on a two and
one-half acre site on Rosalie Street in the I-2 industrial zone
(Fair Lawn site). Commercial or industrial uses bound the Fair
Lawn site on three sides, and single family residences abut the
remaining side. Permitted uses in the I-2 zone include
manufacturing, and warehousing, as well as hospital and public
utility services. Already on the Fair Lawn site are a warehouse
and a parking and loading area. With the exception of public
utility structures, no structure in the I-2 zone may exceed 40
feet in height.
Also located in the vicinity of the Fair Lawn site is a 90-foot monopole, which is used to provide cellular telephone
service. The owner of that monopole is a partnership consisting
of NYNEX Mobile communications, Bell Atlantic Mobile Systems, and
Empire Cellular (NYNEX).
Before Smart submitted its application, the Fair Lawn
Planning Board had decided that NYNEX was a public utility. That
decision exempted NYNEX's monopole from height restrictions.
Originally, Smart requested the Board to declare it to be a
public utility, so its monopole would likewise be exempt from
height restrictions. The Board, however, denied Smart's request.
Similarly, the Appellate Division denied Smart's request to be
treated as a public utility. We denied Smart's cross-petition
for certification on that issue.
148 N.J. 460 (1997).
Consequently, the issue whether Smart should be considered a
public utility is not before us. But see New Brunswick Cellular
Tel. Co. v. Zoning Bd. of Adjustment, No. L-00620-96, 1
997 WL 800355 (N.J. Super. Ct. Law Div. Dec. 2, 1997) (reversing denial
of conditional use variance for monopole when Board of Adjustment
recognized telecommunications carrier as public utility).
Because the Board denied Smart the status of a public
utility, Smart sought a use variance. From August 1993 to June
1994, the Board conducted ten hearings on Smart's use variance
application. In support of its application, Smart introduced
several expert witnesses. Smart's “zoning specialist,” Julie
Mills, explained that Smart chose to locate the mobile
communications facility in Fair Lawn because radio-frequency-engineering studies indicated that a Fair Lawn site was necessary
for the operation of Smart's ESMR system. Mills further
explained that Smart selected the Fair Lawn site only after first
considering and rejecting other site locations.
A radio frequency engineer, Benny Ghahramany, testified that
the Fair Lawn site, which is located in the center of several
other communications sites, is a “high priority site” for Smart's
ESMR system. Failure to construct a mobile communications
facility on the high priority site not only would deprive local
residents of the use of Smart's ESMR system, but also would
hinder inter-site communications. Inter-site communication is
necessary to enable Smart to “hand off” a mobile user's telephone
call to other sites as the user passes through the area.
Ghahramany further explained that 140 feet is the minimum
monopole height necessary to operate a mobile communications
facility on the Fair Lawn site.
A land use planner, Carl Linbloom, testified that Smart's
proposed use constituted an “inherently beneficial use,” as
defined in Sica v. Board of Adjustment,
127 N.J. 152 (1992).
Linbloom asserted that the FCC's grant to Smart of a license to
construct and operate an ESMR system demonstrated the public need
for the service. He submitted a Memorandum Opinion and Order
dated March 14, 1991, in which the FCC stated:
The Communications Act directs us to “[s]tudy
new uses for radio, provide for experimental
uses of frequencies, and generally encourage
the larger and more efficient use of radio in
the public interest.” Certainly, Fleet
Call's [Smart's parent corporation] proposal
falls squarely within the spirit of our
statutory mandate.
According to Linbloom, the proposed use would provide the public with a digital alternative to cellular telephones. Linbloom noted that “typical users may include emergency services, police, fire, first aid and so forth, school buses, other bus manufacturers and trucking companies.” He further concluded that the Fair Lawn site is particularly suited for the proposed use and was essential for Smart's ESMR system to be fully operational. The site, which is situated in a general industrial zone, is compatible with the permitted uses in that zone. Finally, Linbloom testified that the ESMR monopole would produce no noise, vibrations, smoke, dust, odors, heat, or glare. Thus, the ESMR monopole would not impose a significant impact on the environment. Because the ESMR monopole required only periodic maintenance, it would not affect motor vehicle traffic.
Linbloom concluded that the monopole's only negative aspect, its
height, did not outweigh the benefits it conferred.
An electrical engineer, Louis G. Cornacchi, testified for
Smart regarding electromagnetic field (EMF) radiation emissions.
Cornacchi discussed the combined level of EMF radiation that the
Smart and NYNEX antennas would emit. He posited a “worst case”
scenario, in which he assumed Smart would operate all of its
channels at maximum power for twenty-four hours a day. Based on
that assumption, the nearest residential homes, some 400 feet
from the area, would receive 2000 to 2500 times less EMF
radiation than permitted under New Jersey law and 400 times less
EMF radiation than permitted under the laws of those states with
the strictest standards. According to Cornacchi, Smart's
antennas would operate at only twenty to twenty-five percent of
the levels used in his analysis. Thus, he concluded that the
proposed use would emit EMF radiation levels beneath levels
considered safe for human beings.
In response to the Board's concerns about long-term health
effects, Smart introduced the testimony of Dr. Thomas Ely, a
radiation safety expert. Dr. Ely testified that EMF radiation
emissions from the ESMR monopole would fall far below safety
levels set by the American National Standards Institute and the
National Council on Radiation Protection. Residents would
receive greater exposure to EMF radiation through one second of
exposure to sunlight than through twenty-four hours of exposure
to EMF radiation emitted from the ESMR monopole.
Smart's last witness was Robert Vance, a certified general
real-estate appraiser, certified tax assessor, and licensed real
estate broker in the State of New Jersey. Vance testified that
construction of the ESMR monopole would not produce an adverse
impact on real property values in Fair Lawn. In reaching that
conclusion, Vance reviewed Smart's variance application, the site
plan, Fair Lawn's zoning ordinances, and neighborhood sales data.
He performed an on-site inspection of the Fair Lawn site and the
surrounding neighborhood. He also talked with the Fair Lawn tax
assessor as well as other brokers and appraisers. Lastly, Vance
reviewed a property-value study he had conducted in Warren
Township, New Jersey, after a television station constructed a
396 -foot communications tower in a residential neighborhood. In
that study, Vance found that, despite its size and location, the
tower had no impact on the real property values of the
surrounding residential area.
Finally, in response to inquiries from the Board, Smart
advised the Board that NYNEX and Smart were willing to co-locate
their communication antennas on one 140-foot monopole. Smart
proposed to tear-down NYNEX's existing 90-foot monopole and
construct a new 140-foot monopole adjacent to the existing
monopole's location. Thus, the number and location of monopoles
in the area would remain unchanged.
Several Fair Lawn residents objected to Smart's application.
Some residents feared that exposure to the proposed use's EMF
radiation emissions would have a deleterious effect on their
health. Others were displeased with the esthetics of a 140-foot
tower. Still others were concerned that construction of the ESMR
monopole would lower property values.
Angie Licasale, a licensed real estate agent, testified for
the objectors that the ESMR monopole would cause an adverse
effect on real property values. Licasale acknowledged, however,
that she was not an appraiser, that she had never sold a house
near a radio tower, that she had no personal experience with
whether a radio tower affected real property values, and that she
had not reviewed Smart's variance application. Nor had she
reviewed any testimony in the matter nor seen any pictures of the
Fair Lawn site. Lastly, she conceded that she had only a general
knowledge of the Fair Lawn site.
Additionally, Dr. Elaine Winchell, chairperson of the Fair
Lawn Environmental Commission, testified on behalf of area
residents. Dr. Winchell informed the Board that the
Environmental Commission recommended the Board deny the variance
on esthetic grounds.
On June 6, 1994, the Board denied Smart's application for a
use variance. The Board found that the proposed use is not
inherently beneficial because it “is a commercial venture for
commercial users, bringing with it no improvement in the quality
of life of the residents of the Borough of Fair Lawn but bringing
with it the possibility that it can be used for illegal business
transactions.”
The Board further found that no special reasons existed for
granting the use variance and that the “the proposed site is
particularly inappropriate for the proposed monopole” because
“the proposed use is on a narrow strip of industrially zoned
property which abuts a residential area . . . and . . . the
applicant failed to explore other sites which would be
potentially appropriate for its use and would be within the area
for the applicant to meet its technical . . . requirements.”
Finally, the Board concluded that the “use variance cannot
be granted without substantial detriment to the public good and .
. . would substantially impair the intent and the purpose of the
zone plan and ordinance.” To support its conclusion, the Board
found that the monopole was esthetically displeasing to Fair Lawn
residents. It also found that neighboring residents perceived
that exposure to “signals being sent to and from [the]
applicant's equipment on the monopole” would subject them to
“illness over the long term.” The residents also perceived that
their property values would be diminished “by the aesthetically
displeasing monopole and by future purchasers failing to bid on
their homes due to the long term possibility of illness.”
On August 12, 1994, Smart filed an action in lieu of
prerogative writs, challenging the Board's decision. The Law
Division affirmed that decision and dismissed Smart's complaint,
holding that construction of the monopole constituted a
commercial use, not an inherently beneficial use. In an
unreported opinion, the Appellate Division reversed, finding that
the Board's decision was arbitrary, capricious, and unreasonable.
The Appellate Division concluded that the proposed monopole
satisfied the positive criteria for obtaining a use variance.
The court found that the monopole was both an inherently
beneficial use and was particularly suited for the Fair Lawn
site. In reaching the latter conclusion, it found that the site
was a central location, that the I-2 zone's permitted uses were
compatible with the monopole, and that the monopole would neither
produce a significant impact on the environment nor require
maintenance or municipal services.
The Appellate Division further found that the proposed use
satisfied the negative criteria under N.J.S.A. 40:55D-70(d).
Specifically, the court rejected the Board's conclusion that the
monopole, which was merely 50 feet higher than the existing NYNEX
monopole, would be esthetically displeasing. Thus, the court
concluded that the benefits from the monopole far outweighed any
minimal detrimental impact on the zone. It also found nothing in
the record to support the Board's conclusion that the public
might be subject to long term illness from EMF emissions.
Moreover, the court held that the Radiation Act preempted the
Board's consideration of health effects caused by EMF radiation.
Additionally, the court found “no evidence that the proposed use
would be used for illegal business transactions.” Lastly, the
court found no basis for the Board's determination that
construction of the ESMR monopole would lower property values.
Land use regulation is a synthesis of state statutes, municipal ordinances, and judicial decisions. Pursuant to Article 4, § 6, Paragraph 2 of the New Jersey Constitution and the MLUL, the legislature has delegated land use regulation to local municipalities. In particular, N.J.S.A. 40:55D-70(d) governs the applications for “use” or “d” variances. At the time of Smart's application, the statute provided:
The board of adjustment shall have the power to:
. . . .
d. In particular cases and for special
reasons, grant a variance to allow . . . a
use or principal structure in a district
restricted against such use or principal
structure.
. . . .
No variance or other relief may be granted
under the terms of this section unless such
variance or other relief may 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 . . . .
The statute thus requires an applicant to prove both positive and negative criteria to obtain a use variance. In general, the positive criteria require that an applicant establish “special reasons” for granting the variance. Sica, supra, 127 N.J. at 156. “The negative criteria require proof that the variance 'can be granted without substantial detriment to the public good' and that it 'will not substantially impair
the intent and purpose of the zone plan and zoning ordinance.'”
Ibid.
When interpreting the statute, we have distinguished
inherently beneficial uses from other uses. Generally, to
satisfy the positive criteria, an applicant must prove that “the
use promotes the general welfare because the proposed site is
particularly suitable for the proposed use.” Medici v. BPR Co.,
107 N.J. 1, 4 (1987). To satisfy the negative criteria, in
addition to proving that the variance can be granted “without
substantial detriment to the public good,” id. at 22 n.12, an
applicant must demonstrate through “an enhanced quality of proof
. . . that the variance sought is not inconsistent with the
intent and purpose of the master plan and zoning ordinance.” Id.
at 21.
If, however, the proposed use is inherently beneficial, an
applicant's burden of proof is significantly lessened. An
inherently beneficial use presumptively satisfies the positive
criteria. Burbridge v. Mine Hill Tp.,
117 N.J. 376, 394 (1990).
With an inherently beneficial use, moreover, satisfaction of the
negative criteria does not depend on an enhanced quality of
proof. Sica, supra, 127 N.J. at 160-61. Instead, grant of the
variance depends on balancing the positive and negative criteria.
Id. at 163. When striking the balance:
First, the [the local land use] board should
identify the public interest at stake. Some
uses are more compelling than others . . . .
Second, the Board should identify the
detrimental effect that will ensue from the
grant of the variance . . . . Third, in some
situations, the local board may reduce the
detrimental effect by imposing reasonable
conditions on the use. If so, the weight
accorded the adverse effect should be reduced
by the anticipated effect of those
restrictions . . . . Fourth, the Board should
then weigh the positive and negative criteria
and determine whether, on balance, the grant
of the variance would cause a substantial
detriment to the public good.
This procedure, “[w]hile properly making it more difficult for municipalities to exclude inherently beneficial uses . . . permits such exclusion when the negative impact of the use is significant. It also preserves the right of the municipality to impose appropriate conditions upon such uses.” Id. at 166 (citation omitted).
A recent amendment to section d of N.J.S.A. 40:55D-70 substantially codifies the Sica balancing test. See Inherently Useless, N.J.L.J., Aug. 11, 1997, at 26 (editorial); William M. Cox, Impact of New Law on “Inherently Beneficial” Uses, N.J. Planner, July-Aug. 1997, at U-1. Effective June 30, 1997, section d now provides:
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief 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 . . . .
Thus, even when a proposed use inherently benefits the general welfare, the applicant still must prove that the variance “can be
granted without substantial detriment to the public good and will
not substantially impair the intent and purpose of the zone plan
and zoning ordinance.” In effect, the 1997 amendment serves as a
reminder that even with an inherently beneficial use, an
applicant must satisfy the negative criteria.
Other State and Federal statutes also affect municipal
regulation of telecommunications facilities. The Radiation Act
authorizes the New Jersey Commission on Radiation Protection “to
formulate, adopt, promulgate, amend and repeal codes, rules and
regulations as may be necessary to prohibit and prevent
unnecessary radiation . . . .” N.J.S.A. 26:2D-7. Additionally,
the Radiation Act preempts local regulation of radiation
emissions absent approval of the Commission on Radiation
Protection. N.J.S.A. 26:2D-17.
Subsequent to the Board's consideration of Smart's
application, moreover, Congress enacted the Telecommunications
Act, which regulates, among other things, “mobile services” such
as Smart's ESMR service.
47 U.S.C.A.
§332 (West Supp. 1997).
Although the Telecommunications Act recognizes the continuing
role of State and local governments in regulating “the placement,
construction, and modification of personal wireless service
facilities,” id. § 332(c)(7)(A), the Telecommunications Act
limits that role. Specifically, the Telecommunications Act
provides:
(i) The regulation of the placement,
construction, and modification of personal
wireless service facilities by any State or
local government or instrumentality thereof--
(I) shall not unreasonably discriminate
among providers of functionally equivalent
services; and
(II) shall not prohibit or have the
effect of prohibiting the provision of
personal wireless services.
(ii) A State or local government or
instrumentality thereof shall act on any
request for authorization to place,
construct, or modify personal wireless
service facilities within a reasonable period
of time after the request is duly filed with
such government or instrumentality, taking
into account the nature and scope of such
request.
(iii) Any decision by a State or local
government or instrumentality thereof to deny
a request to place, construct, or modify
personal wireless service facilities shall be
in writing and supported by substantial
evidence contained in a written record.
(iv) No State or local government or
instrumentality thereof may regulate the
placement, construction, and modification of
personal wireless service facilities on the
basis of the environmental effects of radio
frequency emissions to the extent that such
facilities comply with the Commission's
regulations concerning such emissions.
(v) Any person adversely affected by any
final action or failure to act by a State or
local government or any instrumentality
thereof that is inconsistent with this
subparagraph may, within 30 days after such
action or failure to act, commence an action
in any court of competent jurisdiction. The
court shall hear and decide such action on an
expedited basis. Any person adversely
affected by an act or failure to act by a
State or local government or any
instrumentality thereof that is inconsistent
with clause (iv) may petition the Commission
for relief.
In other respects, however, the Telecommunications Act imposes greater limitations on local authority than does state law. State courts no longer provide the only avenue of relief for telecommunications carriers that have lost before local land use agencies. Under the Telecommunications Act, “Any person adversely affected by any final action or failure to act by a State or local government . . . may . . . commence an action in any court of competent jurisdiction.” 47 U.S.C.A. §332(c)(7)(B)(v). Thus, an unsuccessful applicant may challenge
in a United States District Court final State or local
governmental action that violates the Telecommunications Act.
See, e.g., Sprint Spectrum, L.P. v. Zoning Hearing Bd., No. Civ.
A. 97-1837, 1
997 WL 688816 (E.D. Pa. Oct. 15, 1997) (finding that
court had jurisdiction to hear appeal from decision of zoning
board denying application to construct and operate a “cell site”
for wireless personal communications services); Western PCS II
Corp. v. Extraterritorial Zoning Auth., No. Civ. 96-1473, 1
997 WL 85741 (D.N.M. Feb. 17. 1997) (reversing denial of application to
construct wireless carrier facility); Bell South Mobility, Inc.
v. Gwinnett County, Ga.,
944 F. Supp. 923 (1996) (reversing
denial of application to construct cellular communications
monopole). Additionally, although municipal boards may regulate
the location of mobile communications facilities, they may not
altogether prohibit them from being constructed within the
municipality. Id. § 332(c)(7)(B)(i)(II). See generally Leon L.
Knauer et al., Telecommunications Act Handbook (1996) (discussing
effect of Telecommunications Act on the telecommunications
industry).
capricious, and unreasonable.” Sica, supra, 127 N.J. at 166-67.
In sum, courts will defer to a decision if it is supported by the
record and is not so arbitrary, capricious, or unreasonable as to
amount to an abuse of discretion. Kingwood Tp. Volunteer Fire
Co. v. Board of Adjustment,
272 N.J. Super. 498, 502-03 (Law Div.
1993).
We begin our review with the Board's finding that Smart
failed to prove the positive criteria necessary to grant a use
variance. First, the Board found that the facility is not
inherently beneficial because it “is a commercial venture for
commercial users, bringing with it no improvement in the quality
of life of the residents of the Borough of Fair Lawn but bringing
with it the possibility that it can be used for illegal business
transactions.” Second, the Board contended that “the proposed
site is particularly inappropriate for the proposed monopole.”
The record, however, shows that Smart proved that its
facility, including the monopole, is a necessary part of an
increasingly essential public service. We are satisfied that
Smart's proposed mobile communications facility serves the public
interest. In approving Smart's application to construct an ESMR
system, the FCC determined that Smart's ESMR system falls
“squarely within” the spirit of its statutory mandate to
“encourage the larger and more efficient use of radio in the
public interest.” Additionally, the Telecommunications Act
indicates that it is in the public interest to promote
competition among providers of commercial mobile services.
47 U.S.C.A.
§332(c)(1)(C).
Numerous decisions of the Law Division and Appellate
Division have recognized that mobile communications facilities
are inherently beneficial uses. See, e.g., New Brunswick
Cellular Tel. Co. v. Borough of South Plainfield Bd. of
Adjustment, Nos. A-6652-95T2, A-6671-95T2, 1
997 WL 638262, at *8
(N.J. Super. Ct. App. Div. Oct. 17, 1997) (finding proposed 90-foot steel monopole used to hold cellular antennas was inherently
beneficial use); NYNEX Mobile Communications Co. v. Hazlet Tp.
Zoning Bd. of Adjustment,
276 N.J. Super. 598, 609 (App. Div.
1994) (holding that cellular transmission antenna to be annexed
to 130-foot water tower constituted inherently beneficial use);
New Brunswick Cellular Tel. Co., supra, 1
997 WL 800356, at *2-3
(finding cellular communications facility inherently beneficial);
New Brunswick Cellular Tel. Co. v. Township of Edison Zoning Bd.
of Adjustment,
300 N.J. Super. 456, 469-71 (Law Div. 1997)
(finding proposed 80-foot monopole used to hold cellular antennas
was inherently beneficial); Kingwood, supra, 272 N.J. Super. at
503-06 (determining that 197-foot cellular telecommunications
tower was inherently beneficial use); Old Bridge, supra, 270 N.J.
Super. at 137-38 (concluding that 160 -foot cellular radio
transmission tower constituted inherently beneficial use). See
also Alan B. Zublatt, The Telecommunications Act of 1996, N.J.
Planner, Dec. 1977, at 4 (discussing impact of Telecommunications
Act on municipal zoning and planning boards). Although none of
those cases involved applications to construct a mobile
communications facility providing digital ESMR services, we find
no reason to distinguish between mobile communications facilities
providing cellular services and those providing digital services.
See
47 U.S.C.A.
§332(d) (indicating that all for-profit mobile
services should be treated similarly as “commercial mobile
services”).
At some point, we too might recognize, as the lower courts
unanimously have recognized, that the proposed mobile
communications facility is an inherently beneficial use. For
several reasons, however, we are reluctant to so recognize such a
facility at this time.
First, the proposed facility will be used strictly for
commercial purposes. Admittedly, the commercial nature of a
proposed use, alone, is not dispositive of its status for zoning
purposes. Some profit making ventures may achieve inherently
beneficial status. Sica, supra, 127 N.J. at 159. Unlike “the
typical commercial use” that acts merely “as a convenience to its
patrons,” Medici, supra, 107 N.J. at 18, the inherently
beneficial commercial use, by its very nature, serves the general
welfare. Sica, supra, 127 N.J. at 160. Nonetheless, the
commercial nature of a venture remains a factor to consider.
Second, inherently beneficial uses are generally limited in
number within a single municipality. Examples include the unique
head trauma center in Sica, the telephone switching station in
Yahnel, the 120 bed nursing home in Urban Farms, Inc. v. Borough
of Franklin Lakes,
179 N.J. Super. 203 (App. Div.), certif.
denied,
87 N.J. 428 (1981), the tertiary sewerage treatment plant
in Wickatunk Village, Inc. v. Township of Marlboro,
118 N.J.
Super. 445 (Ch. Div. 1972), and the private hospital for the
emotionally disturbed in DeSimone v. Greater Englewood Hous.
Corp.,
56 N.J. 428 (1970). Here, Smart is the second company
seeking to locate a mobile communications facility in Fair Lawn.
In the future, other companies may also seek to locate a mobile
communications facility in the area.
The record does not disclose how many mobile communications
facilities exist in New Jersey or where they are located.
Furthermore, the record is devoid of information showing how many
more mobile communications facilities are needed throughout the
state. The absence of relevant information leaves a concern
about the extent to which an undefined number of carriers will
seek to install an unknown number of telecommunication facilities
at undesignated locations throughout the state.
Compounding that lack of information is the competitive
nature of the telecommunications industry. A major goal of the
Telecommunications Act is to promote increased competition in the
telecommunications industry. More companies may seek to enter
the market, thereby necessitating the construction of additional
mobile communications facilities.
Third, unlike many inherently beneficial uses, mobile
communications facilities are essentially exempt from regulation
by state government. Based on the record before us, providers of
mobile communications services need not obtain a certificate of
need from any State department. Compare New York SMSA Ltd.
Partnership v. East Hanover Tp.,
13 N.J. Tax 564, 570 (1994)
(recognizing that Board of Public Utilities has determined that,
under existing statutes, it has no jurisdiction over Cellular
Radio Telecommunications Services), with Sica, supra, 127 N.J. at
156 (indicating that New Jersey Department of Health issued
certificate of need for proposed head-trauma center), Lazovitz,
supra, 213 N.J. Super. at 378 (recognizing that applicant held
certificate of necessity to construct nursing home), and Urban
Farms, supra, 179 N.J. Super. at 209 (same). Given the
essentially unregulated competition in the telecommunications
industry, we doubt that either Congress or the State Legislature
intended that carriers should have a free hand in placing towers
and monopoles wherever they please.
A fourth consideration arises from the fact that Smart's
proposed communications facility includes a 140-foot monopole.
In some parts of the state, carriers have located towers that are
several hundred feet high. The result is that towers and
monopoles are often vastly higher than other structures in the
municipality, particularly those in residential zones. Because
of their size and height, radio transmission towers and monopoles
can be a cause of concern. See, e.g., Borough of South
Plainfield, supra, 1
997 WL 638262, at *10 (finding reasonable
board's conclusion that 90-foot monopole impaired zone plan) ; see
also Lazovitz v. Board of Adjustment,
213 N.J. Super. 376, 380-381 (App. Div. 1986) (holding board did not abuse its discretion
in concluding, among other things, that height and visibility of
proposed four story nursing home impaired residential character
of neighborhood).
A mobile communications facility, which requires
construction of a tower or monopole, is not suitable for every
site. Although such facilities may promote the general welfare,
towers and monopoles can pose special land use problems. A
structure that exceeds permitted bulk requirements, particularly
those pertaining to height, may be more appropriate in one zone
than another or in one area of a zone than another. It is not
that towers or monopoles universally are esthetically
displeasing. Nor is it that they necessarily impose an adverse
effect on surrounding properties or a municipal land use plan.
The point is that some sites are better suited than others for
towers or monopoles. In sum, whether or not a radio transmission
tower or monopole will substantially impair the character of a
neighborhood will depend on the circumstances of each case.
Because of the preceding concerns, we believe the better
judgment is not to declare communications facilities that require
construction of towers or monopoles to be inherently beneficial
uses. Although the issue is not before us, we might reach a
different result with a facility that does not require a tower or
monopole, such as one that simply involves appending antennas to
an existing structure.
To resolve the present appeal, moreover, we need not declare
such facilities to be inherently beneficial uses. A commercial
use serves the general welfare and thereby satisfies the positive
criteria if the use is particularly suited for the proposed site.
Medici, supra, 107 N.J. at 4; Kohl v. Mayor & Council,
50 N.J. 268, 279 (1967). Relevant to the determination of the
suitability of a telecommunications site is the
Telecommunications Act's mandate that “The regulation of the
placement, construction, and modification of personal wireless
service facilities by any State or local government or
instrumentality thereof . . . shall not prohibit or have the
effect of prohibiting the provision of personal wireless
services.”
47 U.S.C.A.
§322(C)(7)(B)(I)(II). Here, the site is
zoned for industrial use, is centrally located within Smart's
ESMR system, and already accommodates the existing 90-foot NYNEX
monopole. Thus, Smart has proved that its mobile
telecommunications facility serves the general welfare and
satisfies the positive criteria.
Our conclusion that Smart's facility satisfies the positive criteria under N.J.S.A. 40:55D-70(d), however, does not end our inquiry. We must still ascertain whether Smart has satisfied the negative criteria. In making this determination, we will weigh, as we would with an inherently beneficial use, “the positive and negative criteria and determine whether, on balance, the grant of
the variance would cause a substantial detriment to the public
good.” Sica, supra, 127 N.J. at 166. We conclude that Smart has
established that the requested variance may be granted without
substantial detriment to the public good.
A telecommunications facility is a paradigm for a use that
serves a greater community than the particular municipality.
Here, for example, the telecommunications facility will provide
Fair Lawn residents, as well as mobile users traveling through
the municipality, with the ability to access Smart's digital ESMR
system. The uncontradicted evidence is that the ESMR system
offers services not available through cellular systems. To that
extent, the ESMR system will further the congressional goal of
competition among providers of commercial mobile services.
Additionally, the general public, commercial entities, as well as
fire, police, and other rescue personnel can use the digital ESMR
system.
The proposed use, moreover, will not substantially impair
Fair Lawn's zone plan or zoning ordinance. Compelling evidence
supports the conclusion that the Fair Lawn site is particularly
suited for the proposed use. Additionally, any detrimental
effects resulting from the grant of the variance will be minimal.
Nothing in the record permits a contrary conclusion. The
proposed use will produce no noise, vibrations, smoke, dust,
odors, heat, or glare. It would require infrequent maintenance
and little or no municipal services such as water, sewer, police
or fire.
On the record before us, the proposed ESMR monopole would
not substantially impair Fair Lawn's zone plan. Although the
Fair Lawn site abuts a residential zone, the site is still zoned
for industrial use and is surrounded on three sides by commercial
and industrial uses. Because Smart and NYNEX offered to take
down NYNEX's existing 90-foot monopole and to co-locate their
antennas on one 140-foot monopole, the proposed use would result
in merely a 50-foot increase in height. That increase would not
substantially alter the Fair Lawn skyline. See NYNEX, supra, 276
N.J. Super. at 612 (finding addition of 8 to 10 feet of antenna
on top of existing 130-foot water tower was “aesthetically
inconsequential and minimal intensification of the
nonconformity”); Kingwood, supra, 272 N.J. Super. at 509 (holding
that replacement of 75-foot tower with 197-foot tower would
impose, at most, minimal intrusion on surrounding community).
In light of state and congressional legislation, the Board
exceeded its authority in giving credence to the perception of
neighbors that EMF radiation emissions may cause long-term health
effects. At the time when the Board heard Smart's application,
the Radiation Act already preempted the Board's consideration of
EMF radiation emissions that fell within applicable government
safety standards. L.I.M.A. Partners, supra, 219 N.J. Super. at
525; Old Bridge, supra, 270 N.J. Super. at 138-39. Since the
Board rendered its decision, the Telecommunications Act likewise
has preempted local consideration of EMF radiation emissions.
47 U.S.C.A.
§332(c)(7)(B)(iv). Here, moreover, Smart introduced
uncontroverted evidence that nearby residents, at most, would
receive 2000 to 2500 times less radiation than permitted under
New Jersey law and 400 times less radiation than permitted under
the laws of the states with the strictest emission standards.
Finally, nothing in the record supports the Board's
conclusion that the proposed use would adversely affect property
values. The only testimony concerning the proposed use's adverse
effect on property values came from nearby residents, who feared
the ESMR monopole would make it harder to sell their homes, and
from a local real estate agent, who thought that the ESMR
monopole would lower property values. We agree with the
Appellate Division that the real estate agent's testimony was
tantamount to a net opinion. Much more persuasive was the
testimony of Smart's appraiser who testified that the ESMR
monopole would have no adverse impact on nearby real estate
values.
We note that in the present case, as in the other reported opinions, local land use agencies were placed in the posture of reacting to an applicant's choice of location for a
telecommunications facility. The Telecommunications Act now
requires that local governments not prohibit or have the effect
of prohibiting, the placement, construction, or modification of
mobile communication facilities within their borders. Perhaps
because of that requirement, some municipalities have adopted
ordinances identifying zones in which telecommunications
facilities may be located. See, e.g., Town Ordinance Gives
Communities Basis to Follow on Cellular Towers, Westfield Leader,
Dec. 18, 1997, at 4; W.P. Henning, Tower Ordinance to Boost
Rumson's Options, Two River Times, Dec. 12, 1997, at 1, 12. Fair
Lawn likewise has amended its ordinance to provide a site for
telecommunications towers. Whether such ordinances comply with
federal or state law is another issue for another day.
Other municipalities likewise have taken steps to conceal
antennas. So called “stealth towers” have been constructed to
look like a bell tower, “Towering” 1997 Achievement, Observer
Tribune, Jan. 1, 1998, at 3, a 100-foot-tall pine tree, or a wind
mill, Andrew C. Revkin, It's a Tree! It's a Cactus, N.Y. Times,
Jan. 11, 1998, at 21. Some carriers have attached antennas to
existing structures such as buildings or water towers. Id. at
25; Sellitto v. Borough of Spring Lake Heights,
284 N.J. Super. 277, 280 (App. Div. 1995), certif. denied,
143 N.J. 324 (1996);
NYNEX, supra, 276 N.J. Super. at 600. Enterprising churches have
executed leases for the installation of antennas on church
steeples. Jon G. Auerbach, Holy Toll Calls: Telecom Companies
Now Turn to Heaven, Wall St. J., Dec. 23, 1997, at 1.
The development of a wireless system that does not adversely
affect surrounding property calls for cooperation between
carriers and land use regulators. We anticipate that carriers
will continue to seek sites for telecommunications facilities.
Across the country, antennas will continue to grow to accommodate
an increasing number of subscribers. See Revkin, supra, at 21
(estimating an increase of 30,000 new subscribers per day).
At the beginning of the twentieth century, telephone and
telegraph carriers dotted the landscape with poles to support the
wires that were essential for telecommunications. As the century
comes to an end, society is making the transition from wired to
wireless communications. Eventually, towers and monopoles, like
the telephone poles of the past, may become an accepted part of
the scene. At some time, moreover, Congress or the State
Legislature may declare that local land use agencies have no role
in deciding the location of wireless telecommunications
facilities. For the present, we believe it is more consistent
with the existing federal and state statutes to recognize a
harmonious role for local land use agencies in the location of
those facilities. That recognition should permit
telecommunications carriers to erect needed telecommunications
facilities on suitable sites.
To guide local land use agencies and the lower courts in
deciding cases involving the location of such facilities, we
offer the following further guidelines. Generally, the issuance
of an FCC license should suffice for a carrier to establish that
the use serves the general welfare. Nonetheless, if a
telecommunications facility requires construction of a tower or
monopole, the applicant must prove that the site is particularly
suited for that use. Concerning the negative criteria, the
Radiation Act and the Telecommunications Act have virtually
preempted local consideration of radiation emissions. Proof of
an adverse effect on adjacent properties and on the municipal
land use plan, moreover, generally will require qualified expert
testimony. Bare allegations that the construction of a tower or
monopole will cause a decline in property values rarely will
suffice. Our goal in making these suggestions is to facilitate
the decision of cases involving the location of
telecommunications facilities with an appropriate regard for both
the need and location of those facilities.
The judgment of the Appellate Division is affirmed as
modified.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion.
NO. A-23 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
SMART SMR OF NEW YORK, INC.,
d/b/a NEXTEL COMMUNICATIONS,
Plaintiff-Respondent,
v.
BOROUGH OF FAIR LAWN BOARD
OF ADJUSTMENT,
Defendant-Appellant.
DECIDED January 26, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY