New York SMSA Ltd. Partnership v. Board of Adj. of Bernards Tp

In New York SMSA Ltd. Partnership v. Board of Adj. of Bernards Tp., 324 N.J. Super. 149, 154, 734 A.2d 817 (App.Div.1999) the Court upheld denial of a variance to construct a communication tower. The applicant sought to locate the tower on the grounds of a school for emotionally disturbed boys in a "public purpose" zone that permitted public or institutional uses such as hospitals, recreational or educational facilities, but no commercial or industrial uses. The nearest residences were 600 feet away, and a townhouse development was 1,300 feet from the proposed site, but no trees or vegetation would effectively screen the tower from the townhomes' view. Id. at 155, 734 A.2d 817. The Court held that the record supported the board's determination that the applicant had failed to meet its burden with respect to either the positive or negative criteria. Id. at 160-161, 734 A.2d 817. As to the negative criteria, we stated that we need not address the board's conclusion that the public interest in perfecting cellular telephone service for the area was "not very compelling." Id. at 161-162, 734 A.2d 817. The Court found that the "existence of the coverage gap claimed by the applicant and the desirability of filling it is clear." Id. at 156, 734 A.2d 817. The board's finding that the tower would be an intrusive presence in the neighborhood could not be disputed, and the applicant had failed to present any evidence concerning the possible danger and potential threat to the safety of the school's students. Id. at 164, 734 A.2d 817.