Towernorth Development, LLC v. Shamong Township Joint Land Use Board

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3577-21

TOWERNORTH DEVELOPMENT,
LLC, and CELLCO PARTNERSHIP,
d/b/a VERIZON WIRELESS,

Plaintiffs-Respondents,

v.

SHAMONG TOWNSHIP JOINT
LAND USE BOARD,

Defendant-Respondent,

and

TRAVIS PRATT, individually and
as owner of OAK SHADE, LLC,

Defendant-Appellant.

Argued November 14, 2023 – Decided February 2, 2024

Before Judges Natali and Puglisi.

On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-1222-21.
 Matthew R. McCrink argued the cause for appellant
(McCrink, Kehler & McCrink, attorneys; Matthew R.
McCrink and Ian Andrew Ballard, on the briefs).

Richard Francis DeLucry argued the cause for
respondents TowerNorth Development, LLC, and
Cellco Partnership d/b/a Verizon Wireless (Cooper
Levenson, PA, attorneys; Warren O. Stilwell and
Richard Francis DeLucry, on the brief).

PER CURIAM

Defendant Travis Pratt (Pratt) individually and as owner of Oak Shade,

LLC, appeals from the Law Division's June 28, 2022 order reversing defendant

Shamong Township Joint Land Use Board's (Board) denial of plaintiffs'

TowerNorth Development, LLC and Cellco Partnership d/b/a Verizon Wireless

(plaintiffs) application for a use variance, conditional use variance and site plan

approval to permit construction of a wireless communication facility. After

reviewing the record in light of the contentions advanced on appeal, we affirm

substantially for the reasons set forth in the trial court's comprehensive written

decisions.

I.

Plaintiffs sought to construct a 150-foot wireless communication

monopole, commonly known as a cell tower, with supporting equipment

including a concrete pad, on a privately owned property in Shamong Township.

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The property, which was already developed with existing structures, abuts both

a public school and undeveloped land owned by Pratt, who intended to develop

his property with six luxury homes. The property was in a regional commercial

growth zone, where township ordinance permits cell towers as conditional uses.

Shamong Township Land Development Ordinance Section 110-

96(E)(3)(a) 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, Section 11-9 of the Ordinance limited development of

properties to one principle use per lot.

The proposed cell tower conformed to zoning requirements for height and

setbacks as well as Pinelands regulations for local communications facilities but

was non-conforming in three respects. Therefore, plaintiffs sought a "d-1"

variance pursuant to N.J.S.A. 40:55D-70(d)(1) because the cell tower would be

a second principal use on the property; a "d-3" variance pursuant to N.J.S.A.

40:55D-70(d)(3) because the property was not a publicly owned land, and a bulk

"c" variance pursuant to N.J.S.A. 40:55D-70(c) because the cell tower's concrete

pad exceeded the maximum size of 100 feet.

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The August 6, 2019 Order

The Board first considered the application at its February 18, 2018

meeting, during which plaintiffs presented four witnesses. Bert Stern, Vice

President of TowerNorth, testified as to the "exhaustive efforts" expended to

locate a site on a municipally-owned property, including two locations that were

rejected by the Pinelands Commission and another rejected by the Board of

Education. Andrew Pertersohn, a licensed professional engineer and radio

frequency engineer, testified as to the need for the cell tower, including the

height required to meet the coverage and capacity objectives. Joshua Cottrell, a

licensed professional engineer, testified as to the engineering aspects of the plan.

James Miller, a licensed professional planner, testified as to the visual impact of

the cell tower to the surrounding areas. Miller opined the property met the

negative criteria for granting a "d-3" variance because the only deviation from

the ordinance was that the property was not owned by the township. He further

testified that the site was particularly suited to the use, would not impair the

public good or zone plan, and would not substantially impair the existing

character of the area because the location consisted of multiple mixed uses. No

other witnesses testified, but members of the public spoke in opposition.

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 Three Board members voted to approve the application and three voted to

deny it, which resulted in a denial of the application. The Board concluded the

application satisfied the positive criteria for the bulk "c" variance and the "d-1"

and "d-3" variances. However, the Board found plaintiffs failed to satisfy the

negative criteria for these variances because the cell tower could not be screened

from public view, which would result in adverse visual and aesthetic impacts to

the surrounding residential areas. Because the Board denied the application

based on the "d-1" and "d-3" variances, it did not address the negative criteria

as to the bulk "c" variance. The Board also noted an alternate site it determined

to be a better location, and found the Pinelands Commission's refusal to approve

that "site was inherently unreasonable, especially considering [p]laintiffs[']

exhaustive efforts and demonstration that no other Regional Growth Area sites

were feasible for a cell tower." The Board adopted Resolution #2018-11

memorializing its decision.

Plaintiffs challenged the Board's denial by filing an action in lieu of

prerogative writs in the Superior Court of Burlington County, Law Division.

The court issued a tentative disposition dated June 6, 2019.

After considering the record and arguments of counsel in light of the

applicable zoning laws and standard of review, the court found Resolution

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#2018-11 failed to assess the factors necessary to evaluate the positive or

negative criteria for variance relief. The court noted the Board "concluded in a

single paragraph that [p]laintiffs satisfied the positive criteria for a ["d-1"] use

variance and ["d-3"] conditional use variance but 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." The court then recited the testimony elicited from

Miller, noting the Board did not present any expert testimony to rebut it.

The court recognized the Board's authority not to accept expert testimony,

but found its denial of the application unsupported because it failed to explain

its reasons for the decision:

Resolution #2018-11 does not assess the factors
necessary to evaluate the positive or negative criteria
for variance relief. Furthermore, the record provided to
the [c]ourt does not demonstrate any statements from
members of the Board regarding the statutory
evaluation of the negative criteria for the requested
variance relief. The Board Resolution does not
demonstrate that the Board analyzed whether the
proposed use substantially impairs the intent and
purpose of the master plan and zoning ordinance. The
Board Resolution does not evaluate the impact of the
proposed use on the character of the neighborhood and
whether the proposed use would constitute a substantial
detriment to the public good. N.J.S.A. 40:55(d)-70.

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 The Board failed to support its denial of variance relief
with substantial evidence in the written record.

[(citations reformatted).]

Accordingly, the court reversed the Board's decision and remanded the

matter to the Board for further proceedings. The court entered an order dated

August 6, 2019, incorporating the reasons articulated in the tentative disposition.

The February 24, 2021 Order

On remand, the Board retained Tiffany A. Morrissey, a licensed

professional planner, to assist in evaluating plaintiffs' application. Morrissey

provided expert testimony at the Board's November 19, 2019 hearing. Morrissey

acknowledged that the cell tower would have a visual impact but in order to

consider the negative impact analysis, the Board must consider where the tower

could be located pursuant to code without any need for a variance. The answer,

she stated, was that the cell tower could be sited on school grounds located a

few hundred feet away, which would not be substantially different than the

proposed site.

On rebuttal, Pratt offered the testimony of Charles John Poliero, a certified

real estate appraiser. Poliero testified that values of residential properties near

the cell tower would be diminished by "[ten] to [twenty] percent, depending

upon the value of the property, closeness[] and aesthetics of the tower." Poliero

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stated that every lot on Pratt's property would have a line of sight to the cell

tower and therefore the value of every lot would be affected.

The Board again denied the application, finding that the positive criteria

had been met but the negative criteria had not, and memorialized its decision in

Resolution #2019-21. Plaintiffs filed an amended complaint in lieu of

prerogative writs.

After considering the record and arguments of counsel in light of the

applicable zoning laws and standard of review, the court issued a tentative

decision dated August 25, 2020. In it, the court noted Poliero's expert testimony

was "the most important evidence" the Board relied on in denying the

application for failure to meet the negative criteria. Poliero had thirty-five years'

experience as a licensed real estate appraiser covering areas of southern New

Jersey, and based his opinion on fifteen to thirty real estate appraisals he

conducted near cell towers and power lines. Setting aside his opinions regarding

the impact of power lines, which was not the issue here, Poliero had only

conducted five to ten appraisals involving proximity to cell towers. He did not

submit any studies or data at the hearing to support his testimony and instead

relied on his recollection and professional experience.

Consequently, the court found Poliero's testimony to be a net opinion:

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 First, while . . . Poliero opines that the public's
perception of cell towers and powerlines lowers the
value of nearby properties, based on his own admission,
[he] could not point to any studies he conducted to
support this conclusion. Additionally, . . . Poliero
concluded that a 150-foot tower, with a 60-foot
compound, within 400 feet of a nearby property would
typically result in a 10 to 20 percent diminution of
value, depending on the value of the property,
closeness, and the aesthetics of the tower, but failed to
provide any data or documents memorializing
comparable sales to the hearing. Most notably,
although . . . Poliero indicated that the proposed cell
tower would result in a 10 to 20 percent diminution of
. . . Pratt's property value, . . . Poliero offered no
calculations or other information to bolster the specific
range he presented to the Board. Without more
information, no reasonable factfinder would be able to
rely on [his] testimony as evidence of the adverse
impacts of cell towers on neighboring property values
or the potential impact of the proposed cell tower at
issue on nearby property values.

The court searched other parts of the record to determine whether it

contained any additional evidence to support Poliero's conclusion but found

none.

The Board argued that, although plaintiffs represented they could not co-

locate the cell tower on an existing power line, it found a case where co-location

had been accomplished. Thus, the Board contended, plaintiffs should be

required to apply to Public Service Electric & Gas (PSE&G) to co-locate the

cell tower with PSE&G's power equipment. Plaintiffs countered that PSE&G

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had restrictions on emergency generators which rendered co-location on those

sites unsuitable. The court rejected the Board's argument, finding "[p]laintiffs

[did] not have a legal burden to show all other sites ha[d] been evaluated and

rejected before it [could] select a non-conforming site and request variance

relief."

The court's tentative disposition again reversed the Board's denial and

"[remanded] for reconsideration by the Board and for the Board to make

appropriate factual findings as to the potential adverse impact of the proposed

cell tower on nearby residential property values." Before entering an order, the

court permitted the parties to submit supplemental briefing to address whether

the matter should have been remanded to the Board or if the court should have

exercised original jurisdiction to grant the application.

The court issued a second tentative decision dated December 22, 2020,

which was incorporated in an order dated February 24, 2021, remanding the

matter to the Board.

The June 28, 2022 Order

On remand, the Board considered supplemental expert reports from

Poliero and from plaintiffs' additional expert, Mark W. Tinder, and rejected

both. Poliero's supplemental report focused on the impact of a cell tower, which

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was located atop a water tower, on the home values of a nearby townhouse

development. The Board did not rely on the report because it found the impact

of co-locating a cell tower on an existing water tower not comparable to erecting

a new cell tower.

Tinder's report evaluated comparable sales of residential properties in

proximity to cell towers in Gloucester Township, Camden County; Springfield

Township, Union County; and Hawthorne Borough, Passaic County. He

provided the height of and distance to the cell tower along with sales data

reflecting adjusted home values compared to the sales price of the target

residence near the cell tower. He included homes valued in the high $200,000's,

mid $300,000's and mid $500,000's, and concluded the difference was less than

one percent in all three studies.

The Board found Tinder's report to be not representative of the subject site

and not helpful to its consideration of the application. The Board rejected

Tinder's testimony adduced on direct examination, but relied on his opinion that

higher-end buyers were more "discerning" and would be less willing to purchase

a property near a cell tower or would purchase a property at a decreased price.

This statement was in response to a question of whether the existence of a cell

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tower would have less of an impact in northern New Jersey because of "higher

prices and higher demand of properties" there.

The Board again found plaintiffs failed to establish the negative criteria

and denied the application, memorializing its decision in Resolution #2021-9.

Plaintiffs again filed a complaint in lieu of prerogative writs.

The court issued a tentative disposition dated March 16, 2022. In it, the

court reviewed Tinder's testimony and methodology, and again found the

Board's determination not supported by the record:

The Board did not deem . . . Tinder's testimony to be
credible. The basis for this determination was a legal
argument unsupported by facts or expert testimony.
The argument was that impact on property values
adjacent to a junkyard would be less than to a
residential development. No facts or expert testimony
supported this argument. The Board found that the
comparable sales were not comparable. No facts or
expert testimony supported this conclusion.

The court addressed the Board's reliance on Tinder's testimony on cross-

examination:

In this instance, his testimony was in response to a
question about higher prices and higher demand. While
the answer does mention discernment of higher priced
buyers, it was in response to support for comparables in
this case. It is noteworthy no analysis is offered by the
Board to support the finding of lack of credibility of
. . . Tinder's testimony. The Board disagrees with his
expert's comparability analysis without expert

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 testimony. They make a conclusory statement about his
credibility. They do not use expert testimony to answer
his analysis that he has not found a negative impact on
property values.

Because Tinder explained his methodology, identified the factual bases

for his conclusions, and demonstrated reliability, the court found the Board's

decision to reject his expert testimony arbitrary and capricious.

The court also rejected the Board's reliance on an unpublished opinion,

N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment of Borough of Bernardsville, No.

A-4174-12 (App. Div. Apr. 8, 2015) because it was of no precedential value

under Rule 1:36-3 and was also factually distinguishable. In that case, the

Bernardsville Board of Adjustment considered testimony that two potential

buyers lost interest after learning of a planned cell tower, which was deemed to

be concrete, as opposed to theoretical, harm to property owners. N.Y. SMSA,

slip op. at 8. The Board members there also noted the housing market had stalled

in the area after the application had been filed. Ibid.

In contrasting that case with the application here, the court found:

There is no testimony that buyers lost interest here.
There is no testimony of concrete as opposed to
theoretical harm. There is no testimony that
development has stalled here.

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 The court again reversed the Board's decision and permitted the parties to

submit supplemental briefs to address whether the matter should have been

remanded to the Board.

The court issued a second tentative disposition dated May 27, 2022. At

that time, plaintiffs consented to reduce the size of the concrete pad to comply

with the ordinance and consequently withdrew their request for a bulk "c"

variance, thus rendering that issue moot, and agreed to work with the Board's

engineer to develop a landscaping plan.

The court noted that, although the bulk "c" variance had not been

addressed in the Board's resolutions because the application was denied based

on the two "d" variances, it was noticed and discussed during the public

hearings. Citing to Puleio v. N. Brunswick Twp. Bd. of Adjustment, 375 N.J.

Super. 613, 621 (App. Div. 2005), the court explained that an application for a

"c" variance and a "d" variance "cannot coexist." This is so because if a

particular use is "not permitted in the zone, the bulk regulations designed for

[the] zone cannot be applicable to the intended use." The court further opined:

Similarly, the Appellate Court in O'Donnell v. Koch
found a bulk variance to be subsumed when the
deviations from the bulk regulations "were necessarily
included in the grant" of the use variance.[] 197 N.J.
Super. 134, 145 (App. Div. 1984). In O'Donnell, the
Appellate Court found [the] use variance for funeral

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 home parking lot in residential zone subsumed bulk
variances regarding curb cuts, privacy fencing, and
separation distances between curb cuts and residence.
Id. at 146. The court concluded that the factual findings
of the Board and the governing body after the second
remand by the trial judge were sufficient, and that under
the circumstances of this case those deviations from the
ordinance were necessarily included in the grant[] of
the use variance. [Ibid.]

[(citations reformatted).]

As to plaintiffs' application, the court found:

The proposed use is permitted in the subject zone as a
conditional use however the [a]pplication did not
comply with just one of the conditions and
consequently a ["d-3"] variance is required. The
application also sought a variance for a [second]
principal use on the property. Other relief included a
bulk variance for the size of the equipment pad. [The
Board] in its Resolution #2018-11 discussed the nature
of the . . . relief requested[,] i.e. the ["d-3"] conditional
use variance for the deviation from not locating on a
prioritized site, the ["d-1"] use variance for proposing
a second principal use on the property and the bulk
variance for the size of the equipment pad. It looked at
the overall site design and its economic impact on the
surrounding residential property values. It stated that
the proposed 150' height of the [c]ell [t]ower cannot be
screened from public view from several nearby
residential areas and as a result they suffer adverse
visual and aesthetic impacts. . . . [The Board] here
considered the overall design of the tower to assess the
use variance and bulk variance application.

[(citations to the record omitted).]

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 The court further noted Resolution #2019-21 specifically found the

positive criteria had been met for the bulk "c" variance and both "d" variances,

which demonstrates the Board "consider[ed] the use variance and bulk variance

together when deciding the '[n]egative [c]riteria.'"

Because the bulk "c" variance had been subsumed into the analysis of the

"d" variances, the court determined that remanding the case again "would be

unnecessary and will prove only dilatory." The court also found the bulk "c"

variance was moot because plaintiffs agreed to reduce the size of the concrete

pad to conform with the ordinance, which eliminated the need for the variance.

The court entered an order on June 28, 2022, incorporating the reasons

articulated in its prior tentative dispositions, reversing the Board's denial and

approving plaintiffs' application, conditioned on the reduction in the concrete

pad and "on [p]laintiffs' development of an acceptable landscaping plan for the

site in conjunction with the review and approval of same by the Board

[e]ngineer."

This appeal followed.

II.

"[W]hen reviewing the decision of a trial court that has reviewed

municipal action, we are bound by the same standards as was the trial court. "

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Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552,

562 (App. Div. 2004). Thus, our review of the Board's action is limited. See

Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are

bound by the same scope of review as the Law Division and should defer to the

local land-use agency's broad discretion).

It is well-established "that a decision of a zoning board may be set aside

only when it is 'arbitrary, capricious or unreasonable.'" Cell S. of N.J. v. Zoning

Bd. of Adjustment, 172 N.J. 75, 81 (2002) (quoting Medici v. BPR Co., 107 N.J.

1, 15 (1987)). "[P]ublic bodies, because of their peculiar knowledge of local

conditions, must be allowed wide latitude in their delegated discretion." Jock v.

Zoning Bd. of Adjustment of Wall, 184 N.J. 562, 597 (2005). Therefore, "[t]he

proper scope of judicial review is not to suggest a decision that may be better

than the one made by the board, but to determine whether the board could

reasonably have reached its decision on the record." Ibid.

On appeal, Pratt presents the following issues for our consideration:

I. The Shamong Joint Land Use Board was Not
Limited to Expert Testimony and Could Consider Any
Testimony it Found Credible.

II. The Trial Court Erred by Judicially Approving a
Modified Application Without Requiring the Applicant
to Submit Modified Plans or Holding [a] Public
Hearing.

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 III. The Trial Court Erred in Overturning the Board's
Determination that Plaintiffs Had Failed to Carry Their
Burden of Proof Regarding the "Negative Criteria."

IV. The Trial Court Did Not Properly Defer to the
Broad Discretion Afforded the Board Derived from its
Familiarity with Local Conditions.

V. The Trial Court Improperly Ruled that Pratt's
Expert Testimony of Charles John Poliero was a Net
Opinion.

VI. The Planning Board's Denial was Reasonable as
a More Suitable Location for Plaintiffs Proposed Tower
was Available.

Applying the above standards, we discern no reason to disturb the trial

court's decision and affirm substantially for the reasons expressed in its

comprehensive and well-reasoned opinions. We add the following comments.

When an applicant seeks a use variance, it must demonstrate special

reasons for granting the variance under the Municipal Land Use Law, N.J.S.A.

40:55D-70(d)(1). These special reasons are referred to as the "positive" criteria.

Here, the Board's determination plaintiffs met the "positive" criteria is not

challenged.

An applicant must also demonstrate "negative criteria" by showing the

variance "can be granted without substantial detriment to the public good and

will not substantially impair the intent and the purpose of the zone planning and

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zoning ordinance." N.J.S.A. 40:55D-70(d). An applicant has the additional

"enhanced quality of proof" to secure "clear and specific findings by the board

of adjustment that the variance sought is not inconsistent with the intent and

purpose of the master plan and zoning ordinance." Medici, 107 N.J. at 21.

Defendant's first issue, that the Board could have considered lay testimony

in support of its decision, was not directly raised below and we therefore would

typically decline to consider it. See Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973). 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, 152

N.J. 309, 336 (1998). We agree that this case falls into that category. To the

extent any objectors provided testimony or input in opposition to the application,

the Board heard it; however, the issue of the cell tower's impact on property

values required expert testimony.

As to Poliero's testimony, the court reviewed the transcripts of the Board's

March 26, 2021 hearing and correctly determined he offered a net opinion.

Although Poliero had real estate experience, he did not produce any report or

data to support his testimony. He could not identify specific sites he evaluated,

studies he had conducted, and could not recall the distance from the residences

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to the cell tower in the five to ten appraisals he had evaluated. Because he could

not "give the why and wherefore" that supported his opinion, it amounted to a

mere conclusion. See Pomerantz Paper v. New Cmty. Corp., 207 N.J. 344, 372

(2011) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).

We also find unpersuasive defendant's argument that the Board's denial

was reasonable because a more suitable location was available. As the trial court

found, plaintiffs were not required to exhaust all alternative locations before

seeking a variance. Rather, an applicant must show a "reasonable and good faith

effort to find an alternative, less-intrusive site" for the project. Ocean Cnty.

Cellular Tel. Co. v. Twp. of Lakewood Bd. of Adjustment 352 N.J. Super. 514,

528 (App. Div. 2002). The record contains Stern's testimony about the efforts

expended in locating a site for the cell tower. Plaintiffs' decision not to pursue

co-locating on PSE&G property was reasonable because they would have been

restricted from installing a generator, which was Verizon's preferred source for

backup power.

We also agree with the trial court's determination that, after the Board

considered plaintiffs' application in the first instance and twice more on remand,

its decision was not supported by the record because plaintiffs amply

demonstrated they met the negative criteria. The court painstakingly reviewed

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Tinder's expert testimony, which was supported by data and unrebutted by any

other expert.

Having made those determinations, the court also correctly decided a

remand was neither necessary nor appropriate. Plaintiffs agreed to comply with

the size requirements and withdrew their request for a bulk "c" variance. As

fully explained in its decision, the court determined the "c" variance had been

subsumed into the "d" variances, and therefore had been addressed in the context

of considering the application.

To the extent we have not expressly addressed any issues raised by

defendant, it is because they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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