Requirements for a Variance to Construct a Communications Tower

In AWACS, Inc. v. Clemonton Zoning Bd. of Adj., 160 N.J. 21, 733 A.2d 453 (1999), the Court emphasized that an applicant for a variance to construct a communications tower nonetheless must satisfy the remaining requirements for obtaining a variance, demonstrating that: (1) the chosen site is particularly suited for the proposed use; (2) the application may be granted without violating the negative criteria relating to the intent and purpose of the master plan; (3) a weighing of the positive and negative criteria shows that granting the variance will not result in a substantial detriment to the public good. The Court also emphasized that, while not required, it is a "better practice" for applicants to present expert testimony concerning the tower's potential impact on the master plan or zoning ordinance. Id. at 25, 733 A.2d 453. In AWACS, Inc., supra (160 N.J. at 23, 733 A.2d 453), Comcast applied for a variance to construct a 100-foot monopole in a commercially zoned area of Clementon near a residential zone. Tenants of a nearby apartment complex and area business owners objected for primarily esthetic reasons. Id. at 24, 733 A.2d 453. The Court found that Comcast had satisfied the positive criteria because its FCC license demonstrated the use would serve the public welfare; it had presented uncontroverted testimony establishing the need for additional cellular telephone service in the area; and the location of the site in a commercial zone, adjoining a major highway and well-situated to deliver the service, established the site as particularly suited for a telecommunications facility. Id. at 25, 733 A.2d 453. Nonetheless, the Court remanded the matter to the Board because Comcast had presented no expert testimony on the effect on the master plan or zoning ordinance of granting the variance. Ibid.