Franklin Lakes August 1, 2012 THE VILLADOM TIMES I • Page 3 Court reverses board’s decision on T-Mobile monopole by Frank J. McMahon Superior Court Judge Menelaos Toskos has reversed the Franklin Lakes Zoning Board of Adjustment’s September 2011 denial of the application filed by T-Mobile Northwest, LLC. T-Mobile was seeking a conditional use variance to locate a 130-foot high flagpole type wireless telecommunications monopole behind the Urban Farms Shopping Center on Franklin Lake Road. Judge Toskos remanded matter to the zoning board for the imposition of reasonable conditions. The board denied the variance because the monopole would have violated the 300-foot setback from residential property required by the borough’s zoning ordinance. As proposed, the monopole would have been 156 feet from the nearest residential property. In his opinion, Toskos said he found no persuasive evidence in the record to deny T-Mobile’s application, and he determined that the board’s decision was arbitrary, capricious, and unreasonable. He ordered that the board’s decision be reversed and that T-Mobile’s application for a conditional use variance and site plan approval be granted. “We are heartened by the court’s decision granting T-Mobile all the necessary permissions required to provide our wireless customers with first class wireless service,” Jane Builder, senior manager of external affairs and spokesperson for T-Mobile USA, said in a statement. “One in four Americans rely entirely on wireless service to stay connected with family, friends, work, and emergency services. We know that wireless service improves the safety and quality of life for everyone.” Zoning Board Attorney Robert F. Davies, who argued in support of the board at the trial on June 29, said, “I am disappointed with the judge’s decision. The board and I certainly felt this application should have been denied.” T-Mobile filed a lawsuit in November 2011 claiming that the zoning board’s denial was legally incorrect and without factual foundation and that the board failed to apply the appropriate zoning test according to previous case law. TMobile claimed the board ignored the evidence that was presented during the public hearing in support of the application, and that no one from the board or the public produced any competent expert testimony to contradict that evidence. Toskos found that, while a determination of a municipal land use board is presumptively valid and the exercise of its authority is not overturned unless it is found to be arbitrary, capricious, and unreasonable, the board did not have sufficient evidence on the record to support its denial based on the visual impact on the neighborhood. In support of his opinion, Toskos cited testimony from T-Mobile’s radio frequency expert, Edward Yorke, who testified about the service gap that existed in the lower half of the borough and the fact that this site would provide the coverage to fill that service gap. The judge also referred to and testimony from T-Mobile’s planner, David Karlebach, who said the shopping center site is 20 times the size of the area required for the monopole, and there were only two homes within the 300 feet from the site that is required by the zoning ordinance. Toskos also pointed to Karlebach’s testimony during which the planner said he did not interpret that an increase from the 156 feet setback to the 300 feet required would make a substantial impact on what the facility would look like at various locations surrounding the site. The judge made note of the fact that the board denied the application based on the detrimental visual impact of the monopole and the fact that the McBride Agency site located across Franklin Lake Road was not considered for the monopole. “With regard to the visual impact on the neighborhood,” Toskos wrote, “the board did not have sufficient evidence in the record to support (its) decision.” He said the findings of the board “fly in the face of the evidence produced at the hearings.” He explained that the board accepted four expert witnesses and accepted 46 exhibits in support of TMobile’s application, and none of the witnesses provided any testimony or evidence that would support the board’s conclusion that the application should be denied. “Nothing in the record provided the board evidence to determine that the tower at 130 feet would adversely affect any of the adjacent properties,” Toskos wrote. “The only expert testimony came from T-Mobile’s planner, Mr. Karlebach. In his opinion, moving the monopole to 300 feet would make no difference in the visual impact.” Toskos also pointed out that the McBride site is not zoned for this use and evidence revealed that the site was not available due to the height of the monopole. Toskos also stated the opinion that the board ignored TMobile’s offer to relocate the monopole to the other side of Pond Brook near the pump house and auxiliary parking lot and make the tower a tree-style facility. “No one, either from the public or the board, produced any qualified expert in support of the denial of the variance,” Toskos wrote. “The application clearly furthers the goals of the (zoning) ordinance and granting the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance. (continued on page 7)