By Matthew Sockol
Staff Writer
MILLSTONE – A Millstone Township resident has taken legal action against the municipality and the Zoning Board of Adjustment in response to the board’s approval for the construction of a cellular communications tower at 237 Woodville Road.
Arlene Fitzpatrick Yarbrough filed a complaint in state Superior Court, Freehold, following the zoning board’s approval of a cell tower near her residence on Woodville Road.
Her complaint alleges that municipal officials’ selection of the tower’s location and the zoning board’s approval of the tower’s application were arbitrary, unreasonable and capricious.
Attorney Anne Studholme submitted the complaint on Dec. 16.
The cell tower was approved on property that is owned by Millstone Township. The structure will have an immediate height of 125 feet and will be extendable to 145 or 153 feet. Representatives of the firm that filed the application said the tower is needed to correct cellular coverage inconsistencies in the area.
The application for the tower’s construction was approved by the zoning board in September. Yarbrough testified against the application at zoning board hearings in May and September.
Construction has not started on the tower, according to township officials.
According to the complaint, 237 Woodville Road is in a Rural Preservation zone, under 2 acres in size and near historic properties: approximately 220 feet from the 1836 St. James African Methodist Episcopal Church and within 200 feet of the church’s graveyard, and a residential structure from 1835. The complaint states that the church is listed on the Monmouth County Historic Sites Inventory.
As alleged in the complaint, Millstone Township officials ignored the welfare of neighbors and the historic significance of the nearby properties by selecting the municipal property as the location for a cell tower.
The complaint asserts that in the Rural Preservation zone, parcels must be at least 10 acres and cell towers must be at least 1,000 feet from historic districts.
The complaint notes that a 25-acre plant nursery is near Yarbrough’s property and asserts that agents of Verizon Wireless allegedly approached the property’s owner to inquire about using the land as a location for the tower.
As alleged in the complaint, although the plant nursery met the zone’s acreage requirement, Millstone Township officials chose to solicit bids for a tower to be constructed on the municipal property at 237 Woodville Road, preferring to keep the revenue that would be generated by leasing the land for the placement of the cell tower.
Additionally, the complaint alleges that the township historian and chair of the Historic Preservation Committee failed to provide information regarding historic resources on or near 237 Woodville Road for the cell tower’s application and that the omission of certain information affected the zoning board’s decision.
The complaint also alleges that the zoning board failed to consider the vulnerability and importance of the historic structures near the property, failed to appropriately consider or address the impacts of the tower on surrounding residences, failed to apply the proper legal test of the application’s negative criteria and failed to consider the availability of the plant nursery as a location for the tower.
For the zoning board, Yarbrough is asking the court to find that the approvals granted by the board were arbitrary, unreasonable and capricious; to reverse the approvals and deny the application; or alternatively, to remand the application to the board with direction toward the appropriate facts to be heard and considered, and the appropriate legal standards to be applied to each element.
For the township, Yarbrough is asking the court to find that the selection of the township property as the location for a cell tower was arbitrary, unreasonable and capricious; to require Millstone officials to appropriately document and confirm the historic nature of the lands adjacent to the township property; and to require Millstone to environmentally remediate the township property and maintain it in a safe and attractive condition consistent with its zoning.
Attorney Gregory Vella, who represents the zoning board, said the board will defend against the complaint and is of the opinion that the application’s approval was lawful and that the complaint has no basis.
On March 1, the Township Committee passed a resolution authorizing a defense of the litigation. According to the resolution, the committee is of the opinion that it has certain defenses to the complaint.