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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5535-08T35535-08T3 NEW CINGULAR WIRELESS PCS, LLC, d/b/a CINGULAR WIRELESS, Plaintiff-Respondent/CrossAppellant, v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HANOVER, Defendant-Appellant/CrossRespondent. ________________________________________________

Argued January 25, 2010 - Decided Before Judges Reisner and Chambers. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3125-07. Daniel S. Bernstein argued the cause for appellant/cross-respondent (Bernstein & Hoffman, P.A., attorneys; Mr. Bernstein, of counsel and on the brief). Christopher John Stracco argued the cause for respondent/cross-appellant (Day Pitney, L.L.P., attorneys; Mr. Stracco, and Jennifer Gorga Capone, on the brief). PER CURIAM This case involves a dispute between plaintiff New Cingular Wireless PCS, LLC, (Cingular) and the Zoning Board of Adjustment of the Township of Hanover (the Board) concerning a site plan condition imposed by the Board. The condition required Cingular to landscape and maintain the landscaping for a nine foot fence to be installed around a telecommunications equipment site located in a residential neighborhood. The trial court upheld the Board's imposition of a landscaping requirement but limited the maintenance requirement to a period of two
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years. Both parties appeal this decision. Cingular contends that it should not be required to landscape and permanently maintain the landscaping. The Board argues that the trial court erred in limiting Cingular's duty to maintain the landscaping to a period of two years, contending that the maintenance requirement should be permanent. While we uphold the Board's requirement that landscaping be imposed, we reverse the trial court's decision to limit the duty to maintain the landscaping to a period of two years. I This dispute arises out of Cingular's plan to install a telecommunications facility in Hanover Township. Cingular proposed to install twelve panel antennas on top of an existing 146.5 foot tall water tower and a ten foot by twenty-five foot compound near the base of the water tower for the placement of equipment and an E-911 antenna. Cingular's original site plan proposed some shrubs for the site. While Cingular will be only a tenant at the site and will not have any employees at the site full time, a technician is expected to visit the site once every four to six weeks for equipment servicing. The property is located in a single-family residential zone in the municipality, adjacent to eleven single-family homes. Cingular applied to the Board for a use variance under 370 N.J. Super 319, 331 (App. Div. 2004). The determinations of a board of adjustment are presumed valid and will be overturned only when they are "so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion." Ocean County Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment, 352 N.J. Super. 514, 521-22 (App. Div.) (quoting Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)), certif. denied, 175 N.J. 75 (2002). The courts also must recognize that boards of adjustment "possess special knowledge of local conditions and must be accorded wide latitude in the exercise of their discretion." Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 167 (1992). However, on legal questions, our review is de novo. Darst v Blairstown Twp. Zoning Bd. of Adjustment, 410 N.J. Super. 314, 325 (App. Div. 2009). In appropriate circumstances, a board of adjustment considering an application for a variance may mitigate the negative impact of a proposed use by "imposing reasonable conditions." Sica v. Bd. of Adjustment of Twp. of Wall, supra, 127 N.J. at, 166. The conditions are "generally development-specific and . . . aimed at mitigating specific concerns arising in connection with the proposed project." William M. Cox, New Jersey Zoning and Land Use Administration

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