NEW CINGULAR WIRELESS PCS, LLC (AT&T) VS. THE ZONINGBOARD OF ADJUSTMENT OF THE TOWNSHIP OF CHATHAM(L-3095-14, MORRIS COUNTY AND STATEWIDE)
A-2467-15T1
| N.J. Super. Ct. App. Div. | Aug 16, 2017Background
- AT&T sought variances and site-plan approval to add antennas and ground equipment to an existing 105-foot water tower in a residential neighborhood to remedy a 2.2‑square‑mile coverage gap.
- The tower already hosted other carriers’ antennas; AT&T proposed mounting below existing antennas, painting equipment to match, and locating ground cabinets inside an existing fenced compound with a ~9.5–10 ft sound barrier and landscaping.
- The Chatham Zoning Board held multiple hearings, heard testimony from AT&T’s radio‑frequency, acoustic, planning, traffic, and appraisal experts, and considered photo simulations.
- Objectors presented lay testimony (a realtor) and contested visual impact, noise, property‑value effects, and the existence/extent of the coverage gap; the Board inspected the site and denied the application citing negative criteria and Sica balancing.
- The Law Division conducted a de novo review, reversed the Board as arbitrary, capricious and unreasonable, and granted the variances; the Appellate Division affirmed, largely adopting Judge Minkowitz’s written reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review / substitution of judgment | Trial court properly reviewed Board record for arbitrary, capricious, unreasonable action | Court substituted its judgment for the Board and misapplied deferential standard | Affirmed: court applied correct standard and reversed because Board's denial lacked evidentiary support |
| Negative criteria: visual, noise, property‑value impacts | Experts showed minimal visual impact, noise below limits with sound barrier, and no measurable property‑value effect | Board relied on lay realtor testimony and perceived hum/visual harm to find substantial detriment | Held: Board’s conclusions unsupported by credible expert evidence; rejection of AT&T’s expert in favor of anecdotal realtor testimony was unreasonable |
| Coverage gap requirement (positive criteria) | AT&T needed only to show a coverage gap; 2.2‑mile gap and selected site best addressed it | Gap was de minimis and alternative sites existed | Held: No requirement to show a “significant” gap; evidence supported that proposed site best filled the gap and remaining uncovered area was not proven de minimis |
| Availability of alternatives / least intrusive means | AT&T considered other sites and selected best option; was not required to prove least intrusive means under MLUL | Board argued substantially inferior alternative sites existed and should have been used | Held: Board relied on substantially inferior, speculative alternatives; its finding was unreasonable in Sica balancing |
Key Cases Cited
- Sica v. Board of Adjustment, 127 N.J. 152 (1992) (sets out balancing test for negative criteria in variance decisions)
- Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309 (1998) (rejects reliance on anecdotal realtor testimony to show property‑value impacts)
- New Brunswick Cellular Tel. Co. v. Borough of South Plainfield, 160 N.J. 1 (1999) (distinguishes monopoles/towers from collocations and discusses potential adverse impacts)
- New York SMSA, L.P. v. Bd. of Adjustment of Weehawken, 370 N.J. Super. 319 (App. Div. 2004) (no requirement under MLUL to prove a significant coverage gap for positive criteria)
- Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75 (2002) (discusses deference and review standard for zoning board decisions)