LAWRENCE: Court sends cell tower case back to zoners

By Lea Kahn, Staff Writer
   The township Zoning Board of Adjustment has been ordered to reconsider the Cellco Partnership’s application for a use variance to build a cell tower on the Peterson’s Nursery property on Route 206.
   The zoning board was ordered to hear the use variance application again — without considering a township-owned property on Carter Road as an alternative cell tower site — by a three-judge panel of the Appellate Division of Mercer County Superior Court in a ruling handed down Friday.
   A use variance was needed because a cell tower is not a permitted use in the Environmental Protection-1 residential zone. The Peterson’s Nursery property, at the corner of Route 206 and Province Line Road, is in the EP-1 zone.
   The Appellate Division ruling pleased the Carter Road Homeowners Association Inc., which opposes Lawrence Township’s agreement to lease the Carter Road property to CWL Realty Co. to construct one monopole tower. Township Council approved the lease in 2009.
   ”We are absolutely pleased (with the Appellate Division ruling),” said Len DiDonato, who chairs the homeowners association. “It’s the first thing that has happened in three years that has gone our way. I hope common sense will prevail.”
   The Cellco Partnership/Verizon Wireless and New Cingular Wireless PCS LLC sued the zoning board in March 2008 after it refused to grant the use variance to allow construction of a proposed 140-foot-tall tower on the Peterson’s Nursery property.
   But Mercer County Superior Court Judge Linda Feinberg dismissed the lawsuit in April 2009, stating that “when a telecommunications facility requires construction of a tower or monopole, the applicant must prove that site is particularly suited for that use.”
   The zoning board found that “the record does not conclusively establish that Peterson’s Nursery is particularly suited for the monopole,” Judge Feinberg wrote. “The most attractive feature” of the site is that the property owner was willing to lease it to the cell carriers, she wrote.
   Judge Feinberg also wrote that a 2-acre parcel on Carter Road, which was offered by township officials as an alternate site at the zoning board’s last public hearing on the Cellco application on Dec. 19, 2007, “would be as an effective — if not more effective — alternative means of filling the coverage gap.”
   The zoning board denied the Cellco Partnership’s use variance application because of the possibility that the Carter Road site would be available as an alternate site. Township Council had authorized Municipal Manager Richard Krawczun to prepare bid specifications for one or two cell towers on that site at its Dec. 18, 2007, meeting — the night before the zoning board meeting.
   But Appellate Division Judges Stephen Skillman, William P. Gilroy and Jose Fuentes, in their ruling released Friday, wrote that their analysis “will focus only on the Zoning Board’s consideration of the ostensible availability of the Carter Road property as a suitable alternative site” for the Cellco Partnership’s cell tower.
   ”We limit our focus in such a manner because we are satisfied that the Zoning Board’s improper consideration of this site irreparably tainted its decision to deny (the Cellco Partnership’s) applications. Thereafter, (Judge Feinberg’s) misapplication of the ‘time of decision’ rule, as a means of validating the Zoning Board’s decision, compounded this error,” the Appellate Division judges wrote.
   The judges wrote that the Cellco Partnership tried repeatedly to obtain the right to use the Carter Road property as a cell tower site before they applied for a use variance for the Peterson’s Nursery property. But Lawrence Township replied that the site could not be used for a cell tower because its use was deed-restricted to a fire substation.
   But during the series of nine public hearings in 2007 on the use variance application for the Peterson’s Nursery property, zoning board members referred to the Carter Road site as an alternative — even though the Cellco Partnership’s attorney reminded them that Lawrence Township had not taken any steps to make it available.
   At the Zoning Board’s final meeting on the Cellco Partnership application, the zoning board attorney showed the board a letter from Municipal Manager Richard Krawczun, indicating that Township Council had held “a discussion regarding a process of public bidding for the lease of township-owned land for placement of two unipole cell tower installations.”
   The zoning board then voted to deny the use variance application, “using this cryptic, unofficial statement as the principal basis for its decision,” the judges wrote.
   ”On these facts, the Zoning Board’s decision cannot stand,” the judges wrote. “This 11th hour communication from the township’s manager was legally meaningless. The letter does not refer to or mention any official action taken by the council.”
   ”The manager concluded (his letter) by stating that he ‘recommends that the parcel be offered for use as a cell tower location.’ This is no way made the site available to (the Cellco Partnership) or any other member of the public. In short, this letter should have played no role (in the Zoning Board’s decision),” they wrote.
   The zoning board’s decision to deny the use variance is “inextricably linked to and predicated on the alleged availability of the Carter Road property. The only way to untangle this adjudicatory web is to remand for the Zoning Board to review the application” based on the record, but without considering the Carter Road property, the judges wrote.