dissenting.
The telecommunications industry is among the fastest growing industries today. “Industry analysts predict that between 122,000 and 250,000 new cell sites will be needed to meet the growing demand of cellular phone subscribers in the United States alone.” Ben Campanelli, Planning for Cellular Towers (visited May 18, 1999) <http://www.webcom.com/~pcj/articles /caml28.html>. This need for “expansion of cellular communications systems, in both capacity and geographical coverage, has resulted in the inevitable conflict with local land-use planning and zoning laws. In many instances, the development of this new technology has outpaced the ability of communities to enact zoning ordinances which accommodate cellular telephone services.” Nancy M. Palermo, Progress Before Pleasure: Balancing the Competing Interests of Telecommunications Companies and Landowners in Cell Site Construction, 16 Temp. Envtl. L. & Tech. J. 245, 246 (1998) (footnotes omitted).
This conflict is heightened by the concerns of local citizens that the construction of cellular towers “will have [an] adverse impactf ] on aesthetics, property values, or health and safety.” Gregory Tan, Wading Through the Rhetoric of the Telecommunications Act of 1996: Uncertainty of Local Zoning Authority over Wireless Telecommunications Tower, 22 Vt. L.Rev. 461, 462 (1997). When Congress passed the Telecommunications Act of 1996, deregulat*18ing the industry with certain substantive and procedural limitations,1 it explicitly retained the authority of local government to adopt zoning regulations for the industry. Ibid.
The Telecommunications Act of 1996 has been described as “expansive legislation designed primarily to increase competition in the telecommunications industry.” It was passed “in order to provide a ‘pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services____’ ”
[Carol R. Goforth, “Not in My Backyard!” Restrictive Covenants as a Basis for Opposing the Construction of Cellular Towers, 46 Buff. L.Rev. 705, 726-27 (1998) (footnotes omitted).]
Notwithstanding the deregulation of the industry, wireless service facilities sought to present themselves as public utilities, entitled to a favored status as a public utility or as an inherently beneficial use, see Sica v. Board of Adjustment Tp. of Wall, 127 N.J. 152, 603 A.2d 30 (1992). In Smart SMR of New York, Inc. v. Borough of Fair Lawn Board of Adjustment, 152 N.J. 309, 704 A.2d 1271 (1998), we made it clear that wireless services facilities are neither regulated public utilities nor inherently beneficial uses. The fact that “America’s fast-paced and convenience-driven society demands immediate gratification” does not warrant a finding that wireless service facilities are inherently beneficial. Timothy L. Gustin, The Perpetual Growth and Controversy of the Cellular Superhighway: Cellular Tower Siting and the Telecommunica *19tions Act of 1996, 23 Wm. Mitchell L.Rev. 1001, 1002 (1997). If a dairy processing facility is not an inherently beneficial use, Kohl v. Mayor and Council of Fair Lawm, 50 N.J. 268, 279, 234 A.2d 385 (1967), instant personal communication is not. Rather, in Smart, swpra, we held that any use variance for cellular tower sites must be “particularly suited for the proposed site”. 152 N.J. at 332, 704 A.2d 1271 (citing Medici v. BPR Co., 107 N.J. 1, 4, 526 A.2d 109 (1987)).
This case is much like a dog chasing its tail; it can never catch up because it started out on the wrong premise. The zoning board and the Law Division proceeded on the assumption that wireless services facilities are inherently beneficial uses. Ante at 7, 733 A.2d at 455. The zoning board denied the variance finding that the “minimal benefit from the monopole did not outweigh the public detriment____” Ante at 18, 733 A.2d at 446. The Law Division reversed the zoning board on the basis that the proposed cell tower was an inherently beneficial use. The Court now reinstates the judgment of the Law Division that was based on a flawed premise. (In fairness to the excellent judge of the Law Division, it is necessary to note that the Law Division was bound by existing Appellate Division decisions that cellular towers were inherently beneficial uses.)
It makes good sense and is only fair that we permit the body “best equipped to pass initially on such applications.” Ward v. Scott, 16 N.J. 16, 105 A.2d 851 (1954). This application should be properly presented to the zoning board of adjustment. A special-reasons variance that is not inherently beneficial must be rooted in the land itself, not the use.
Although certain commercial uses may inherently serve the general welfare in a particular community, the typical commercial use can be better described as a convenience to its patrons than as an inherent benefit to the general welfare. For such uses, any benefit to the general welfare derives not from the use itself but from the development of a site in the community that is particularly appropriate for that very enterprise.
[ Kaufmann v. Planning Bd. for Tp. of Warren, 110 N.J. 551, 563, 542 A.2d 457 (1988) (citing Medici, supra, 107 N.J. at 18, 526 A.2d 109).]
*20In order that the variance be granted, there must be evidence that the site is particularly appropriate for a ninety-foot tower.
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 in another. It is not that towers or monopoles universally are aesthetically displeasing____ The point is that some sites are better suited than others for towers or monopoles.
[ Smart, supra, 152 N.J. at 331, 704 A.2d 1271.]
In Smart, I could agree that when there was already an existing ninety-foot tower at the site, the site was particularly suited for another tower. Although there was evidence before the Board that there was an existing construction tower at the site, the variance application proceeded without a focus on the issue of whether the site was particularly appropriate or some other site might have served as well. Instead of applying the “particularly appropriate” standard under Smart, the experts for both the plaintiff and defendant misapplied the “inherently beneficial use” balancing test under Sica, supra, 127 N.J. at 167, 603 A.2d 30.
On another occasion I had observed that the Court had viewed itself as a sort of shadow cabinet determining how to conduct the affairs of a department of State government. Woodland Private Study Group v. State, 109 N.J. 62, 76-83, 533 A.2d 387 (1987) (O’Hern, J., dissenting). In this case, the Court has established itself as a state-wide zoning board, determining, as a matter of original jurisdiction and first impression, that the site is particularly appropriate for this tower. Medici, supra, 107 N.J. at 18, 526 A.2d 109. Fortunately, this may be a vestigial exercise of jurisdiction by the Court because zoning boards of adjustment will in the future be prepared to channel future applications for cellular towers into the proper format.
The zoning board of adjustment is the “best equipped” agency to judge the variance application initially. Ward, supra, 16 N.J. at 23, 105 A.2d 851. I would remand the application to the board.
*21For reversal and reinstatement — Chief Justice PORITZ and Justices HANDLER, POLLOCK, STEIN and COLEMAN — 5.
For remandment — Justice O’HERN — 1.
The Telecommunications Act of Í 996 provides:
The substantive limitations on local authority decree that zoning regulations "shall not unreasonably discriminate among providers” and "shall not prohibit ... the provision of personal wireless services.” § 332(c)(7)(B)(i)(I) & (II). The statute also outlaws governmental consideration of "the environmental effect of radio frequency emissions,” so long as the emissions comply with FCC regulations. § 332(c)(7)(B)(iv). Procedurally, the Act requires local governments to act expeditiously on requests for zoning variances, § 332(c)(7)(B)(ii), and requires zoning denials to be in writing and based on substantial evidence, § 332(c)(7)(B)(iii). Finally, subsection (c)(7)(B)(v) provides jurisdiction to federal courts over controversies arising under § 332.
[.PrimeCo Personal Communic., L.P. v. Village of Fox Lake, 26 F.Supp.2d 1052, 1058-59 (N.D.Ill.1998), recons. denied, 35 F.Supp.2d 643 (N.D.Ill.1999).]