A New Jersey Appellate Court ruled last Friday in favor of TowerNorth, and their client Verizon, regarding a series of legal actions by Shamong Township, NJ in an effort to block the construction of a proposed tower in the area. TowerNorth had begun the application process for the site a decade ago, according to the company’s CEO Bert Stern, in an exclusive interview with Inside Towers.
“The Judge upheld the lower court’s decision,” Stern said, “which officially clears us to proceed with finalizing our construction plans and actually build this site. I had originally started working on this site in 2014.” According to Stern, the case did not go to court until 2018 but, prior to that, local opposition took many forms including petitions and protests from local residents. Verizon contended that residents had been complaining over the years about dropped calls and unstable internet access.
TowerNorth brought suit against Shamong Township after the town’s board denied the application for the 150-foot monopole in February of 2018, on a site located at a local winery. The site abuts a public school and undeveloped land owned by a plaintiff who planned to develop six luxury homes on his adjacent property.
The property was ruled to be in a regional commercial growth zone, where township ordinance permits cell towers as conditional uses. Shamong Township ordinances, however required cell towers to be located on prioritized locations, the first of which is “developed publicly owned lands within 500 feet of an existing structure.” In addition, the ordinance limited development of properties to one principle use per lot.
The Court ruled the proposed cell tower “conformed to zoning requirements for height and setbacks as well as Pinelands regulations for local communications facilities.”
The plaintiffs sought a variance because the cell tower would be a second principal use on the property, that the property was not a publicly owned land, and the tower’s concrete pad exceeded the maximum size of 100 feet.
After considering the arguments of counsel in light of the applicable zoning laws, the Court found that the plaintiffs failed to “assess the factors necessary to evaluate the positive or negative criteria for variance relief.” The court noted the Board “failed to satisfy the negative criteria necessary for the requested relief,” and its “only conclusion relevant” to the negative criteria was that the cell tower could not “be screened from public view from several nearby residential areas which would sustain adverse visual and aesthetic impacts.”
After both sides called expert witnesses to testify on the impact the towers would have on local real estate values, the township asked that any legal decision be tabled until further research could be done. However, the trial court noted that proof of a negative impact of a cell tower on surrounding properties generally requires qualified expert testimony, citing Smart SMR v. Borough of Fair Lawn Bd. of Adjustment (1998).
The court ruled that the township’s expert did not produce any report or data to support his testimony. “He could not identify specific sites he evaluated,” the record stated, “or studies he had conducted, and could not recall the distance from the residences.”
The Court found that the applicant also showed a “reasonable and good faith effort to find an alternative, less-intrusive site” for the project (Ocean County. Cellular Tel. Co. v. Township. of Lakewood Bd. of Adjustment) and met all the conditions of the variances.
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