Zoning Board forced to approve cell tower Township chooses tree over flagpole as venue for 120-foot cell tower BY KATHY CHANG Staff Writer WOODBRIDGE - The only choice Colonia residents received was whether they wanted a 120-foot-tall flagpole or a 120-foot-tall tree designed as a telecommunications tower. In the end, the 50 or so residents who attended the Zoning Board of Adjustment meeting on June 21 reluctantly chose the tree. "It's bad enough that we have the American Legion there, now we have to put a tower there and we can't say anything about it," said John Sedar, who lives on Fairview Avenue with his wife, Elenor. In May 2006, the Zoning Board voted 6-1 against the application by Sprint Spectrum LP to install a 120-foot-tall telecommunications tower on the American Legion Colonia Post No. 248's property at 806 South Middlesex Ave. Residents had a myriad of complaints and concerns about the cell tower that ranged from health concerns and what a cell tower would do to their neighborhood of approximately 400 people. "We thought we had nothing to worry about," said Frank Morell, who also voiced his concern at last year's meeting. "Their application was denied." However, state Superior Court Judge James P. Hurley of Middlesex County, sitting in New Brunswick, overturned the board's ruling in May 2007 when Sprint Spectrum LP filed a lawsuit against the board's decision. Sprint Spectrum LP proposes to construct a 120-foot monopole with 12 cellular antennas at a maximum height of 122 feet, and a 12-foot-by-20-foot equipment shelter at the base of the monopole together with a 6-foot-high chain-link fence around the shelter. The property, which is located in the R-7.5 High Density Single Family Residential Zone, consists of 33,407 square feet [0.77 acre] and contains an existing one-story building used and occupied by the American Legion. The site also contains a trailer and an accessory pavilion. The court cited in Hurley's seven-page decision that the township Zoning Board "obviously lost sight of the fact that the use is a permitted use; although a conditional use, it is permitted by ordinance." The board stated that they "find the site is, indeed, in the residential zone, albeit located on a nonconforming use - i.e., the American Legion Post property - and therefore, not an appropriate site for the proposed use." The court also cited that "cellular towers are a conditional use in an R-7.5 zone district." A conditional use is one that is permitted in the zone subject to certain restrictions. The court disagreed with the board's statement that it finds "nothing in the record that indicates there is no coverage whatsoever in the 'gap' area. Therefore, finds while the proposed monopole would enhance the applicant's coverage, it is not necessary in order for the applicant to provide adequate coverage for its customers." Hurley's decision said the record clearly indicates that Glenn Pierson, who testified on behalf of Sprint as an expert in radio frequency engineering, said that although the proposed site would not achieve the coverage required by Sprint, that this site, in conjunction with other sites, would "fix Green Street and provide in-building coverage in the mall area and reduce some capacity issues from that standpoint … . " The judge said Sprint clearly seeks to address "not only a coverage issue, but also a capacity issue." The court also cited that there was no finding of the board's conclusion that "the proposed 120-foot monopole would have a negative visual impact on the surrounding residential uses" and called the statement nothing but a "conclusion and a net opinion." "There was no competent testimony that the introduction of the monopole into the neighborhood would have any detrimental effect on property values," Hurley's decision said. "The nearest residence far exceeded the toppling distance of the monopole. The radio frequencies to be used are in compliance with all federal and state regulations." Telecommunications facilities are permitted conditional uses in this zone (R-7.5 high-density single-family residential zone) provided that they are located a minimum of 2,000 feet from a residential structure, school or other such tower. The proposed location is approximately 204 feet from the nearest dwelling. Hurley's decision cited that Timothy J. Kronk, who testified on behalf of Sprint as a professional planner, testified that even though the site is in a residential zone, "it is at the edge of the zone" and that uses within the area could be characterized as being mixed. Kronk further testified that no location within the search ring would satisfy the 2,000-foot condition. The judge said that when the board denied Sprint's application for a variance, they failed to address the variance for the height of the tower and its application for site plan approval. "There is no cellular tower height regulation imposed by ordinance," Hurley's decision said. "Because there is no such regulation, Sprint is entitled to a height that is reasonable and justifiable." Hurley's decision allowed Sprint to come back to the board with a conditional use variance at the height they requested. The board could only impose reasonable conditions that they deemed necessary to mitigate any detriment, albeit minimal, to the surrounding neighborhood. Sprint representatives said they received a letter of intent from Verizon for use of their antennas. When residents questioned the board about alternatives and appealing the judge's decision, the board told the residents that they would not appeal the judge's decision on advice from the township's law department. "If we file an appeal, it would just cost the taxpayers needless legal fees, since it's almost certain that we would lose the appeal," said board Chairman Bernie McLaughlin. Residents reached out to Mayor John E. McCormac, who said he would help the residents in any way that he could, but stressed that he has no say in Zoning Board decisions. "I am totally against what happened," he said. "We will work with the residents to see if we can still stop the cell tower from being built." "The township is working on an ordinance to make things more difficult for these things to happen in the future," said McCormac. "It is unfortunate that this cell tower will be built so close to the neighborhood." After the public hearing, many residents gathered outside council chambers and voiced their frustration. Among them were two Iselin residents who are battling with a cell tower proposal of their own. Omnipoint Communications Inc. proposes to install a 120-foot-high monopole, disguised as a flagpole with a 12-foot-by-18-foot American flag, on a 19,159-square-foot irregular tract of land fronting on the southeast side of Route 27 near the intersection of Block Avenue. The board will hear Omnipoint's proposal at 7 p.m. July 26 in council chambers at town hall. As for the residents in Colonia, they said they feel betrayed by the township, the Zoning Board and by the Superior Court in Middlesex County. "I am very disappointed," said Elenor Sedar. "This is a travesty."