Franklin Lakes January 11, 2012 THE VILLADOM TIMES I • Page 11 T-Mobile files lawsuit against zoning board by Frank J. McMahon T-Mobile Northwest LLC, a wholly owned subsidiary of T-Mobile USA, Inc, has filed a lawsuit against the Franklin Lakes Zoning Board of Adjustment in response to the board’s Sept. 1 denial of an application to locate a 130-foot high flagpole type wireless telecommunications monopole behind the Urban Farms Shopping Center on Franklin Lake Road. In its lawsuit, T-Mobile’s attorney, Gregory Czura, claims the zoning determinations made by the board are legally incorrect and without factual foundation and that the board failed to apply the appropriate zoning test as had been outlined in previous case law. Czura also claims the board ignored the evidence his client presented that supported its application and that no one from the board or the public ever produced any competent expert testimony to contradict his client’s expert testimony. Czura asked the court to declare that the board’s denial of T-Mobile’s application violates the state’s municipal land use law and the established body of laws governing wireless communications facilities. He also asked the court to declare that the denial was arbitrary, unreasonable, and capricious, and that T-Mobile is entitled to an approval as a matter of law without remanding the matter to the zoning board for further action. In the lawsuit, Czura asserts that a significant coverage gap exists for T-Mobile’s residential and business customers in Franklin Lakes along Franklin Lake Road and High Mountain Road for about 1.3 miles and the proposed monopole would provide service to areas in that part of the borough. According to Czura, the proposed site was particularly suited for the monopole, but T-Mobile also examined alternate sites for its monopole and looked for municipal properties to locate its facilities. In addition, Czura claimed the company granted extensions of time for the board to act on T-Mobile’s application so the borough’s mayor could find a different site, but no other sites were found to be available for T-Mobile and no other sites were suggested as viable locations by the board or any member of the public. The zoning board denied T-Mobile’s application for a conditional use variance because the monopole would have violated the setback distance from residential property as required by the borough’s zoning ordinance. The location of the monopole as proposed by T-Mobile would have been 156 feet from the nearest residential property, while a 300foot setback is required by borough ordinance. Several residents of nearby Feather Lane voiced strong objections to locating the 130-foot high monopole within the required 300-foot setback. Those residents attended the four public hearings conducted by the board before the application was denied. In its resolution of denial, the board emphasized that the borough’s zoning ordinance requires a setback of 300 feet from all residential zones in order to reduce the visual impact of a large facility such as a telecommunications monopole upon the adjoining residential properties. Noting that the proposed monopole would be three feet in diameter and sit on a base that would be six feet in diameter and be 130 feet tall at a distance of only 157 feet from the residential zone line, the board stated, “The proposed telecommunications tower would be a dominating feature, visually intrusive, and visible from many points in the adjoining neighborhood.” The board further claimed in its resolution of denial that T-Mobile presented insufficient evidence of the potential visual impact of the proposed telecommunications monopole on the adjoining properties and did not present adequate evidence of what the monopole would look like from adjoining properties. In addition, the board noted that the proposed location on this site was not the first one that was considered for the monopole and that the original location was more to the east and would have had a rear yard setback of 316 feet and a side yard setback of 264 feet which would have been significantly more conforming to the required 300-foot setback. That original location was abandoned when the owner of the shopping center property decided to install refrigeration equipment in that area and the board claimed T-Mobile did not adequately explain how that occurred. The board’s resolution also pointed out that the McBride Agency, located across the street from the T-Mobile proposed site, was willing to consider allowing T-Mobile to construct a monopole at a height of 80 or 90 feet, but TMobile did not adequately explain why such a monopole on that property would not be suitable for its needs. “Locating the proposed tower so as to provide just over half of the required distance to the nearby residential zone is simply too great a variance,” the board’s resolution states, “and will have a significant negative impact upon the adjoining residential zone and its neighboring properties.”