Pillar of Fire Tower AppealSUPERIOR COURT OF NEW JERSEYSOMERSET COUNTYLAW DIVISIONHONORABLE ROBERT E. GUTERLDOCKET NO: SOM-L-555-99________________________________________________________________PILLAR OF FIRE, INC., Plaintiff, vs.BRIDGEWATER TOWNSHIP BOARD OF ADJUSTMENT, Defendantand TRI TOWNSHIP COMMITTEE FOR A BEAUTIFUL RIDGE,AND HOWARD WEINERMAN, Defendant-Intervenors,________________________________________________________________COURT'S OPINION:This is an action in lieu of prerogative writ instituted by Pillar of Fire, Inc., Pillar, challenging a denial of its use variance application by the Board of Adjustment of the Township of Bridgewater, "the Board. Pillar states two causes of action against the Board in its complaint, filed on March 25, 1999. The first asserts that the Board's denial of the relief sought was arbitrary and capricious as well as violative of the Federal Communications Act. The Second Count asserts that the Board's action was violative of "Federal Law and impede[s] (sic) interstate commerce."By consent order additional party defendants were added as intervenors. These intervenors, Tri Township Committee for a Beautiful Ridge, hereinafter Tri Township, (an unincorporated association) and Howard Weinerman, hereinafter Weinerman, were objectors to Pillars application during the Board hearings.Pillar is a non-profit religious corporation which operates FM Station WAWZ, an ecumenical, religious or inspirational radio station located in Zarapath, New Jersey. Its format includes live call-in programs for open discussion of personal problems to be considered by qualified experts as well as the broadcasting of public affairs programs covering a variety of issues such as rebuilding Black Churches, New Jersey automobile insurance, health care professions, substance abuse, Consumer Fraud, drinking and driving. (Testimony of Rev. Crawford TR 10: 1433, 1-5; 1434, 1-25 and 1435, 1-10). This description of the mission and work of Pillar was not disputed by the defendants.A transmitter tower for this broadcasting function was constructed in 1968 on a 2.68 acre parcel of land in Bridgewater Township, designated as Lot 29A in Block 6801. This tower, being 226 feet in height, was approved for construction by a use variance granted by the Bridgewater Township Board of Adjustment in the same year. This approval was limited to the transmitting facilities of Pillar, then deemed a use which would promote the general welfare as evidenced by the 1968 resolution of the Board of Adjustment. No mention was made then or subsequently about additional antennae. Notwithstanding the limited approval set forth in the 1968 resolution, Pillar, without further zoning approvals, expanded the use of that tower by adding 29 commercial antennae.Photographs of the existing Pillar Tower and its related equipment buildings were introduced into evidence by the applicant's architect as Exhibits A-9, A-10 and A-11. (TR 1: 58, 19-25; 59 and 60) Adjoining the Pillar site to the south is Lot 32 in Block 6801. This lot also contains a transmission tower which is owned and operated by AAT Communications on property owned by Mr. and Mrs. Joseph Musialowski. (Exhibit A-1) The AAT tower contains 29 commercial antennae as listed in Schedule F to Exhibit A-63 and was also approved by variance. In the course of presenting its case, Pillar represented that, if the proposed tower was approved, the AAT tower would also be demolished and the antennae would be relocated on the tower to be erected.Pillars site, as well as the adjoining AAT site, is located in the R-50 residential zone of Bridgewater Township which is a single family residential zone requiring a minimum lot area of 50,000 square feet. Abutting the northerly side of Pillars site, which has a linear distance of 696 feet is the Township of Bernards. (Exhibit A-1) The zoning in this area is R-3. (Residential 2 acre minimum lot size) To the east of the Pillar site is Warren Township, which is also zoned residential in that immediate area. Communication towers are neither a permitted nor conditional use in any of these municipalities. The Pillar site is located at an elevation of 686 feet with this elevation being the highest in the area. (TR 1: 34, 18-25, 35, 1-12 and Exhibits A-1 and A-2) The general location of the site is at the peak of the second ridge of the Watchung Mountains. (TR 11: 1567, 25; 1568, 1-24; 1602, 11-12)As testified to by John Chadwick, a professional planner presented on behalf of the intervenor-defendants, the residential zoning "completely surrounds the tower" in Bernards, Bridgewater and Warren Townships, with this residential zoning being in place since 1949 as to Warren Township and at least 20 years in Bernards and Bridgewater Townships. Except for the existence of Pingry School, located in Bernards Township, the area consists of a "vast majority of single family residential homes, being substantial expensive residential homes, particularly in the last 15 years in terms of development." There are also "significant open space areas, particularly along the ridge areas." (TR 15: 2106, 14-25; 2107, 1-25 and 2108, 1-16) This ridge area, known as the "Second Ridge" of the Watchung Mountains. is the source of the land feature known as "the Hills of Somerset County" with documented studies by the County of Somerset, Township of Bridgewater and Bernards and Warren, setting forth primary goals of preserving the "viewscape" of the ridge as a "natural resource." (Chadwick testimony TR 15: 2110, 25; 2111, 1-22; 2112, 1-25; and 2113, 1-4)Pillar submitted substantial evidence to the Board, including the following:(a) Pillar proposed to remove its existing 220 foot tower and related equipment building on the site and have them replaced with a 440 tall, free standing communications tower together with an unmanned utility equipment building consisting of 4,778 square feet of ground floor area and 1962 square feet of attic area. (Testimony of applicant's engineer, David Stires, TR 1:8, 13- 25; 9, 1-4 and 36, 7-11) This proposal is also detailed on a development plan introduced as Exhibit A-2.(b) The designer of the proposed tower, Myron Nobel, testified that the tower would be structurally sound for the installation of 390 antennae "plus 12 or 24 cellular antennae . . . plus the FM antenna of WAWZ" on the top. (TR 4:482, 18-24) The tower design is set forth in Exhibit A-28. The total height design is 440 feet. (TR 4:533, 13-24)(c) The design of the proposed tower by Mr. Nobel was undertaken after he was told that the tower was to be 440 feet in height and told the number and type of antennae referred to above. (TR 4:530, 22-25; 531, 1-19; 532, 1-25)(d) At the November 11, 1997, meeting, testimony was presented by Mr. Clarence Beveridge who provided a summary of the proposed use of the tower as follows:(i) The tower will be used for the Somerset County 911 system for a total of 22 different public agencies, including the Highway Department, police, EMS, and the prosecutor's office, as well as the local Bridgewater Police and Fire Departments. (TR 7: 959, 15-25; 960, 1-3 and 961, 1-3).(ii) The FM broadcast antenna for WAWZ will be located between the 400 and 436 foot levels. (TR 7, 962, 10-11)(iii) At the 165 to 365 foot levels, there is to be a variety of users including "PCS, two way, and public service, paging, police, EMS and U.S. Government antennae." (TR 7:962, 5-16)(iv) The levels of 125 and 145 feet, the lowest levels, will be made available to cellular antennae. (TR 7: 962, 16-18)(e) At the February 24, 1998, meeting, the manager of the AAT Communications tower (Mr. Marraccini) testified that the tower on the adjacent Musialowski property was running out of space. (TR 9, 1229, 6-18). Because of this situation, AAT entered into the master marketing contract with Pillar to relocate its antennae on the proposed Pillar tower. (TR 9: 1231, 9-11) This witness further testified that the AAT tower is currently being managed profitably (TR 9: 1260, 15-18) and the users of that tower are not experiencing any transmission difficulties. (TR 9: 1300, 6-12)(f) The proposed height of the pillar tower, at 440 feet, was the subject of testimony by Mr. Joseph Clinton, who was hired by the applicant to build the tower. His testimony included the following:(i) The height determination was not dictated by Pillar. (TR 11: 1522, 3-10)(ii) Its height was based upon his input derived from his research as to what the applicable maximum FAA (Federal Aviation Authority) height standards were. (TR 11: 1522, 1-25; 1523, 1-11)(iii) As stated by Mr. Clinton, "The process is actually very easy. I call up an aeronautical engineer at Kennedy Airport, give him the coordinates of the site, and ask him for a first blush look of what the potential of violating any federal air regulations would be. . . then we proceed with a single-page application to the FAA to get approval to build a tower of that height at that specific location. (TR 11: 1523, 24-25; 1524, 1-9).Pillars ContentionsPillar alleges that the instant variance is necessary so that it may comply with FCC standards, and enhance the quality of 911 emergency services in Somerset County. Pillar further contends that it meets the requirements of the Municipal Land Use LawN.J.S.A.40:55D-1 et. Seq. Which provides in relevant part (40:55D-70) that a Board of Adjustment shall have the following powers:[I]n particular cases and for special reasons,to grant a variance to allow departure form regulations pursuant to Article 8 of this Act to permit:(6) a height of a principal structure which exceeds by 10 feet or 10% the maximum height permitted in the district for a principal structure. A variance under this subsection shall be granted only by a affirmative vote of at least five members, in the case of a municipal board.The same statutory section sets forth the negative criteria, which in addition to the earlier mentioned special reasons standard, must be satisfied in order to grant a variance:No variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted withoutsubstantialdetriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. (emphasis added)That statute makes plain that before a Board can grant a d variance, it must make two findings: (1) that special reasons exist for the variance (often referred to as the positive criteria), and (2) that the variance can be granted withoutsubstantialdetriment to the public good and will notsubstantiallyimpair the intent and purpose of the zoning plan (often referred to as the negative criteria). With regard to the negative criteria, though detriment to the public good and impairment of the zone plan are stated separately, they are generally considered together, since in most cases, a variance will only be detrimental to the public because it is inappropriate to the zone.The term special reasons has been the subject of many decisions. But it has become clear that considerations which would justify the granting of a use variance for special reasons are those that advance the purposes of zoning, as contained in the previously mentioned statutory sections, such as the promotion of general welfare and safety of the community, appropriate use of property, the providing of sufficient space and appropriate location for a variety of agricultural, residential, recreation, commercial and industrial uses and open space, both public and private, in order to meet the needs ofallNew Jersey citizens, not simply residents of a particular Borough or Township.Burbridge v. Mine Hill Tp., 117 N.J. 376 (1990).Pillar argued unsuccessfully before the Board that the proposal clearly would promote the general welfare as evidenced both by the intent of numerous cellular and digital communications companies to locate on the proposed tower as well as the commitment of the County and other public agencies to locate communications thereon at the 330 (three hundred thirty) foot level. In addition, Pillar argued that it has demonstrated through expert testimony that the property herein is particularly suited to the proposed use for many reasons. Pillar now contends in this appeal that the Board acted arbitrarily and capriciously by resisting those arguments.The site of the proposed tower is located at the top of the Second Watchung Ridge, one of the highest elevations in the regions. The site currently has a communications tower and within the general vicinity three (3) additional towers exist. Location of a tower on the property will enable enhanced and new communications to occur. To be sure, the largely unrebutted testimony of the many witnesses produced by Pillar supports a conclusion that current gaps in service would be eliminated and that the need for additional multiple tower sites throughout the region would be unnecessary, if the proposed tower is constructed.Pillar also argues that the existence of Pillars FM religious radio station, while acknowledged by the Resolution of the Board as the basis for the Pillars 1968 approval, should have been a controlling factor warranting a grant of the variance underBurlington Assembly of God Church v. Zoning Bd. of Adj. of the Tp. of Florence, 238 N.J.Super.634 (1989). In theBurlingtoncase Judge Haines quoted Justice Cliffords opinion in the matter ofState v. Cameron, 100 N.J. 586 (1985) in finding that the general welfare was served by theBurlingtonproposal:Moreover, courts have heldthe religious activity itself is in furtherance ofpublic morals and the general welfare, and that religious institutions enjoy a highly-favored and protected status, which severely curtails the permissible extent of governmental regulation in this areaThe free-exercise clauses of United States and New Jersey Constitutions extend to all lawful conduct founded in religious belief. Deprivation of the protections afforded thereby requires the State to demonstrate some ?overriding governmental interest, that justifies the substantial infringement of appellants First Amendment right and to show that ?no alternative forms of regulation would combat such abuses without infringing First Amendment rights. [at 606-607; citations and footnote omitted,]Id. at 639It should be noted, however, thatBurlingtoninvolved only a church operated radio station tower, such as Pillar proposed and was allowed to erect originally. The present application is distinguishable. Pillar now proposes a tower far larger and designed to accommodate in the main a large number of commercial antennae. In most respects the church use is not the main use for the proposed antenna, whereas it was the only use inBurlington.That distinction is significant and even critical in this case.Pillar also contends that all transmission and coverage as to WAWZ are preempted by the FCC, noting that Congress provided the FCC with wide ranging authority over broadcasting operations. InNational Broadcasting Co. v. U.S. 319 U.S. 190 (1943) the Court said that the FCC has comprehensive powers to promote and realize the vast potentialities of radio.Id.at 217 Further, the FCC is empowered to deal with more than technical impediments to thelarger and more effective use of radio in the public interest.Moreover, akin to the case ofYahnel v. Jamesburg Bd. of Adj., 79 N.J.Super. 509 (App. Div. 1963),cert.denied, 41 N.J. 116 (1963) Pillar argues the proposal herein would improve telephonic communications and thereby the general welfare criteria has been met. In this Application there was uncontroverted expert testimony that the proposal would benefit the Countys emergency communication needs, reduce dead spots for Bridgewater Police and Martinsville Rescue Squad, and that commercial users communications needs would be enhanced. Pillar produced statistical demographic evidence that the location was one that was necessary to fill known voids in Bridgewater and throughout the County.Pillar argues extensively from precedent that it has also offered evidence to demonstrate that it is mere conjecture that the proposal will have a negative visual impact on the neighborhood. There are a number of decisions which have considered the basis for rejection of tower application where the denial was based upon aesthetic concerns. One such case wasCellular Telephone v. Bd. of Adj. of the Borough of Paramus,37 F. Supp. 2d 638 (D.N.J. 1999) wherein the Resolution of denial stated the aesthetic impact (of the proposal) is in conflict with the surrounding residential uses and would detract from the character and appearance of the area.Id. at 643. The proposal therein was for a monopole that was located in a residential zone, albeit, surrounded by commercial uses. Therein the court concluded There was no evidence or testimony in support of the Boards conclusion that the negative aesthetic impact would be significant or that the facility would detract from the character or appearance of the neighborhood.Id.at 650. Distinguishing theHo-Ho-kuscase the court stated:The board (inHo-Ho-kus)not only received expert testimony from the cellular company, but it also heard expert testimony about the detrimental effects the monopole would have on the aesthetics of the area as well as the damage it would do to the residential property values in the neighborhood.Id.at 371. Substantial evidence was clearly present in Cellular Telephone. That is not the situation in the case at bar. As previously stated, the Board only received expert testimony and evidence from AT &T. No expert testimony or evidence was introduced to rebut the material produced by AT &T. Additionally,noevidence was produced to show that the aesthetics of the area or the property values of the neighborhood would be jeopardized by the existence of the facility.Id.at 651.InCellco Partnership d/b/a Bell Atlantic Mobile, Inc. v. Town Plan & Zoning Comn of Farmington, 3 F. Supp. 2d 178 (D.Conn 1998), a personal wireless service provider requested a permit to raise and reconstruct a church steeple and install cellular antennas within. The Applicant therein relying on photographs alleged that the proposal would blend in with the general neighborhood despite no precise testimony as to other building height in the area.Id.at 183.TheCellcocourt took the Board to task for deciding how a proposed use would be in general harmony with the character of the surrounding neighborhoodId. at 184 concluding that [t] here was no evidence presentedatthe hearingsto refute Cellcos positionId. at 183 and faulted the Board as it did not tie its conclusionto evidence in the record.Id. at 184.Pillar relies upon those precedents and contends that the Resolution passed by the Board reliedsolelyon common sense in deciding that there was a visual impact.InNew Brunswick Cellular Telephone Co. d/b/a Comcast Cellular One v. Tp. of Edison Zoning Bd. of Adj.,300 N.JSuper.456 (1997), the court provided in dicta some useful parameters with regard to the aesthetics issue. Specifically, the court in referring to theL.I.M.A. Partners v. Northvale, 219 N.J.Super. 512, 520 (App. Div. 1987) cautioned that statements of individuals that proposed communication facility is aesthetically displeasing are an ?inadequate substitute for appropriate findings based on credible evidence in the record,Id.at 473, most similar to what the Board herein based their decision upon. Moreover, the Court stated that the Board had a quasi-judicial obligation to balance the positive and negative criteria with regard to the need for the proposal therein and aesthetic displeasure with same, something the Board herein did not effectuate.In Sprint Spectrum L.P d/b/a Sprint PCS v. Town of North Stonington,12 F. Supp. 2d 247 (D. Conn. 1998) a proposal to erect a 150-foot tower was denied by the Board. In reversing said decision the court stated that if there are no alternative sites for the placement of a PCS facility within a town, the visual concerns can predominate. Such a conclusion would be tantamount to entirely prohibiting the placement or construction of PCS facilities which would violate (the Act).Id. at 255.Pillar also relies upon the case of360 Communications v. Bd. of Super. of Albemarle, 50 F. Supp. 2d 551 (W.D. Va. 1999), wherein the court reversed the Boards denial of a 150-foot self-supporting tower. Most relevant to the case herein was that while the court took Judicial notice that cellular towers are aesthetically unpleasing(1)4the court held that there maybe instances where an unattractive tower must be placed in a visible area to provide wireless service in compliance with (the Act)Id. at 560. In the360 Communicationscase the proposal was to be placed in the highly prized by the public for natural beauty mountain preservation area because due to topographic limitations same was necessary.Id.at 563-564. Experiencing the same tension that existed in the Pillar application, to-wit, whether one high tower or, in the alternative, several smaller towers should be erected the court stated:But for an alternative to be reasonable it must, at a minimum, provide a high level of wireless service, its cost must be within or close to the industry wide norm for establishing new service under similar circumstances, it must employ commonly used technology, and it must be logistically feasible.Plaintiffs two alternatives would concededly provide the necessary level of wireless service. The alternatives also employ widely available and widely used technology. The cost and logistical difficulties associated with the alternatives make thenunreasonable. At oral argument, plaintiff represented that each of the six or 24 towers would cost the same to construct as the single mountain top tower. If wireless service providers are forced by local governments to incur such high expenses, the local government has accomplished through the backdoor what Congress has directly proscribed. State and local governments may not carry out policies that have the effect of prohibiting the deployment of new wireless service. 47 U.S.C. 332(c)(7)(B)(I)(II). (Id. at 563)In Omnipoint Corp. v. Zoning Hearing Bd., 181 F. 3d 403 (3rd Cir. 1999) the court reversed a Boards denial of a proposal to construct a monopole. In doing so the court relying upon New York and New Jersey cases stated:As the Court of Appeals for the Second Circuit held, a few generalized expressions of concern with aesthetics cannot serve as substantial evidence for purposes of 332(c)(7)(B)(iii) and similarly, [a] few generalized concerns about a potential decrease in property values, especially in light of [the plaintiff]s contradictory expert testimony, does not seem adequate to support a conclusion that the permits should be denied. Cellular Telephone, 166 F.3d at 496 (2d Cir.1999) (internal quotation marks omitted).Id. at 409InPrimeco Personal Communications Limited Partnership v. Lake County Florida,1998 WL. 565036 (M.D. Fla.) the court in rejecting unsubstantiated concerns with regards to aesthetics stated:the Court concludes that the decision is not supported by substantial evidence contained in the written record. In paragraph number six of its findings of fact, the Board stated that PrimeCos proposed tower would have a significant adverse impact on the surrounding areas and adjacent subdivisions in violation of 14.05.06. No explanation is given as to how or why the proposed tower would have such an impact, but one could surmise from the record that the members of the Board were concerned about the sheer height of the proposed structure and the likelihood that it would be an eyesore in the surrounding neighborhood. If so, the natural result would be a diminution of property values in the neighborhood; but, if that was the rationale of the decision it is completely unsupported in the written record. To the contrary, Primecos property appraiser both testified before the Board and submitted a study demonstrating that property values for commercial, industrial, and residential areas located in close proximity to the proposed tower would not change. See Doc. 40, Exh. 5, Tab C; Exh. 7, Pgs. 37-40. Primeco also pointed out to the Board that no residents located in the area surrounding the Aabot Fence site opposed the proposed tower. However, the Board chose to discount the property appraisers testimony in the absence of any contrary professional opinion [FN9] and completely ignored the lack of opposition to Primecos tower. The Board stated that there might be other anonymous persons who are opposed to the proposed tower, and/or have been subjected to decreases in their property values, due to their close proximity to an existing tower, therefore demonstrating that Primecos tower could result in a decrease in property values is insufficient to warrant a denial of Primecos application. See OPM-USA- Inc. v. Bd. of County Commrs of Brevard County, Case No. 97-408- Civ-Orl-19, at 19 (M.D. Fla. 1997).Id.at 24-25In OMP-USA-Inc. v. Bd. of County Comrs, 7 F. Supp. 2d 1316 (M.D. Fla. 1997) a co-location company applied for a permit to construct a 400 foot telecommunications tower in a rural and somewhat residential zone. The area in question had two (2) other existing towers. The Applicant noted the crux of the issue in stating Towers aint pretty. They tend to be large. They have to be, because they have to be tall.Id. at 1321. In reversing the Boards denial the Court provided several reasons, including but not limited to, aesthetic and real estate concerns were not supported by the record, the evidence demonstrates that the communications tower wouldnotbe totally foreign to the aesthetics of the neighborhood since there are two other towers within view, and the practical effect of this tower would be to reduce the number of future towers neededThe Court notes that towers cannot always be compatible with the character of the surrounding property.Id. at 1324-1325.Based on the above, coupled with Pillars expert testimony, Pillar argues that aesthetics and visual impacts cannot be a proper basis for denying the proposal herein. Pillar argues that the testimony of Flaherty and Vance, experts the board accepted, went unchallenged. Even assuming, arguendo, that the Boards cross-examination of applicants witness, Robert Vance (was) effective in negating his conclusion that there would be no adverse impact on real estate valves, (Page 18 of the Resolution) the testimony of Flaherty is still unassailable. Moreover, as there existed no similarly situated expert or even lay testimony to counter the testimony of Vance and Flaherty one must remember the dictates ofSmart: Bare allegations that the construction of a tower or monopole will cause a decline in property values will rarely suffice.Smart, supra, at 336.Pillar argues that the court in the case ofNew Brunswick Cellular v. Zoning Bd. of Adj. Of the Borough of Metuchen,307 N.J. Super. 560 (1997) strongly admonished the Board therein for taking the very unsubstantiated actions and conclusions that the Bridgewater Board undertook herein. Specifically, the court stated that the absence of any credible evidence regarding these ?findings would itself warrant reversal of the Boards actionId.at 573; while the tower will no doubt be aesthetically displeasing to some of the neighboring residentsas cautioned inSica, supra, regional or local institutions recognized as serving the public welfare are ?far too important(to be prevented) by the imposition of exclusionary municipal legislation enacted for the sake of preserving the character of the communityId. at 574; and specifically, with regard to real estate values stated (while) the Board found the testimony (of the Applicants real estate expert) to be convincing, [relying instead on the lay testimony of neighboring residents (same was not sustainable as) it was necessary that the Board ground its conclusions on specific evidence in the recordIt may not speculate or rely upon the unsubstantiated ?fears of nearby residents as to what ?may occur.Id. at 575. In the case ofCellular Tele. Co. v. Tower of Oyster Bay, 166 F.3d 490 (2nd Cir. 1999) the court,despitebeing presented with the evidence of a real estate broker indicating that the proposal would in fact effect real estate values, concluded that the broker offered no evidence other than her unsupported affidavit to prove how she reached this conclusion.Id. at 496. Moreover, the court relied on other published decisions in concluding that in the face of expert testimony evidence unsupported constituent testimony... will not satisfy the substantial evidence test.Id.In the matter herein, the Board was not even presented with such evidence to support its decision of denial. Pillar contends this lack of evidence to support the Boards position warrants reversal.DECISIONIn this matter, a use variance was sought by Pillar under N.J.S.A. 40:55D-70(d)(I). In order to grant such relief, a board of adjustment must make two findings: (1) that "special reasons" exist for the variance (positive criteria) and (2) that the variance can be granted without substantial detriment to public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. (negative criteria).Burbridge v. Mine Hill Township, 117 N.J. 376, 384-385 (1990). Further, in deciding applications for a variance, where the use does not inherently serve the public good, the board is required to receive proofs, "in addition to proof of special reasons, an enhanced quality of proof, with clear and specific findings by the board, that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance."Medici v. BPR Co., 107 N.J. at 21.The precedents which guide judicial review are firmly established. Upon appeal from the decision of a board of adjustment, a trial judge should give greater deference to the Board, particularly when the Board denies a variance as opposed to granting one.Basralian, Id. at 208.Nynex Mobile Communications Co. v. Hazlet Township, 276 N.J. Super. 598, 609 (App. Div. 1994). A court must affirm the boards decision unless it is arbitrary, unreasonable or capricious. If said decision is not supported by the record it can then be said to be a arbitrary, capricious and unreasonable.New Brunswick Cellular Tel. Co. v. Board of Adjustment, Borough of South Plainfield, 160 N.J. 1, 14 (1999). Further, the Court cannot substitute its own judgment for that of the board in areas of factual disputes.Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 296-297 (1965).The positive criteria"Special reasons" to justify (d) variance relief include any one or more of the purposes of zoning as set forth in N.J.S.A. 40:55D-2.Medici v. BPR., Co., 107 N.J. at 18;Burbridge v. Mine Hill Township, 117 N.J. 376, 386 (1990). In this matter Pillar relies upon the purpose set forth in N.J.S.A. 40:55D-2(a), the "general welfare" standard:To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare.Claims that a variance serves the general welfare are divided into two categories. One of these is a proposed use which is "inherently beneficial," that is one which "inherently" serves the public good such as schools, hospitals, public housing, nursing homes and other types of uses as detailed inSica v. Board of Adjustment of Wall Township, 127 N.J. at 159 (1992), andMedici v. BPR Co., 107 N.J. at 13 (1987). If the use falls within the category of an inherently beneficial use, it satisfies the positive criteria. If however, the general welfare standard is not satisfied in this manner, the standard can be met if an applicant proves that the "use promotes the general welfare because the proposed site is particularly suitable for the proposed use."Smart SMR v. Fair Lawn Board of Adjustment, 152 N.J. 309, 323 (1998);Medici v. BPR, supra at 4.Pillar argues, first, that the proposed use is inherently beneficial. Pillar seeks to use the proposed tower as an FM radio transmission facility for WAWZ broadcasts, 911 and other emergency broadcast antennae and cellular, pager and digital wireless phone communications. The broadcasting use was found originally to be inherently beneficial at the time of the original grant of a variance. In its recent resolution, however, the Board concluded that the proposed tower, as a whole, did not constitute an inherently beneficial use. (Para. 10, Pages 14-15) Nor were the broadcasting use by WAWZ or the wireless commercial users deemed to be inherently beneficial. (Para 10, Page 15 and Para 11, Page 15).Upon treating these users differently, the Board equated the proposed tower as being similar to a large commercial office building which contains, to some degree, an inherently beneficial use. It concluded the whole building does not become an inherently beneficial use because of a singular inherent beneficial user. (Par. 11, Page 15) The Board concluded that WAWZ, by itself, was not an inherently beneficial use. In doing so, it acknowledged that while radio transmission does allow for the dissemination of information, news and in this instance, religious and education programs, this is not sufficient to establish that the use inherently serves the general welfare. While the use is important for a well informed public, it is not essential to a community, as are hospitals and schools. That is not to say that such a use is to be denigrated, but that it is not sufficiently essential giving it the right for consideration in any zone.The Boards determination is consistent with the concept of an "inherently beneficial use" as containing features that tend to limit the number of them in a single municipality.Smart SMR v. Fair Lawn Board of Adjustment, 152 N.J. 309 (1998). There are no state regulations which limit the number of cellular towers and radio transmission facilities that can be located in a municipality. Further, no reported decision in this state has held that a commercial or religious broadcasting station is an inherently beneficial use.Pillar alleges that the Board must demonstrate an overriding government interest that would warrant an infringement on their First Amendment right to transmit WAWZs religious programing. This Court does not agree. A denial of the variance will not alter the fact that WAWZ was adequately serving the municipality and the region with its existing facility. Its current area coverage is "11,488 square kilometers" which is proposed to be increased to "13,031 square kilometers". (See footnote 2, Page 14 Defendants Statement of Facts) The weekly listener coverage in 1997 was 80,500 persons and is currently over 119,000 persons with there being minimal, if any, impairment of regional coverage. (Page 13, Defendants Statement of Facts) See also,Macedonia Orthodox Church v. Randolph Township Planning Board,269 N.J. Super. 562 (App. Div. 1994) wherein the obligation to satisfy an ordinance requirement that a proposed use does not substantially impair the character of the surrounding area, was properly imposed upon a church, notwithstanding its First Amendment claims.The proposal to increase the WAWZ antenna height appears to be based on a desire of the station to reach listeners in Queens, New York, and other distant listening areas as well as a desire to substantially increase revenue. Pillars own expert testified that the height was chosen by simply ascertaining the greatest height that would be allowed by the F.A.A. It is unclear how such an expansion would serve the general welfare of the residents of Bridgewater Township or the regional needs of Somerset County. In view of the fact that the finding of an inherent benefit to a proposed use carries with it such profound consequences, the Boards decision to take into account the extent to which the application would support any inherent benefits to the community is a reasonable one. None of the precedents offered by Pillar address this point. It is evident that this tower will be usedprimarilyfor commercial users who will affix their antennae to the tower in return for the payment of rent. These users are largely unknown and the amount they will pay to Pillar has not been discussed before the Board. The numbers of antennae which are expected to be erected suggest the income will be substantial. Even if the Board had found that the expansion of the radio broadcasting range or the improvements to radio communications by local public agencies were inherently beneficial, the Board would be justified in requiring that such inherently beneficial uses be theprimarypurposes to be served by the granting of the variance. On this record, the Board made a reasonable assessment of the purposes and found those claimed to be inherently beneficial were secondary and subordinate uses and therefore did not satisfy the special reasons standard. While the Board conceded that some of the uses were inherently beneficial, for example, the proposed use of the Plaintiffs tower by the Bridgewater Police Department, the Martinsville Rescue Squad, the Somerset County Prosecutors Office and other potential government users, the Board determined that these uses, being approximately 22 antennae out of 300, do not require a tower height of 440 feet. Certainly all parties in their argument have effectively conceded the fact that the height of the proposed tower is its most offensive feature. Yet the height for which approval is sought is not necessary for any of the uses which arguably serve the public good.Furthermore, by reference to the Edwards and Kelcey report, the Board determined that the proposed tower could not even cover all the dead spot areas impacting the 911 transmission into the Route 22 corridor, "regardless of the antenna elevation." (Resolution, Para 7, Pages 7-8) The testimony by the Somerset County Director of Emergency Management (Roy Gunzelman) indicated that he was unaware that the Edwards and Kelcey report had recommended a tower height of 250 feet and further that the County not place its 911 facilities on a crowded commercial tower. (See Statement of Facts, Page 19-20) The record supports the Boards finding that the public safety and general welfare needs demonstrated during the hearings would be fully served by the 911 and public agency antennae located at 1/2 the tower height proposed and would be better served on a tower without the proposed 278 commercial antenna. Viewed in its entirety, therefore, Pillars proposal was properly determined not to be inherently beneficial.InSmart SMR, supra, the Supreme Court resolved the issue as to whether mobile communications facilities such as NYNEX, Bell Atlantic Mobile Systems and others similar to what are proposed on the Plaintiffs tower are inherently beneficial uses. TheSmartCourt declined to render such uses inherently beneficial and ruled that special reasons, as to this type of use, would have to be established by proofs that the use is particularly suited for the proposed site.Id.331-332. Accordingly, the wireless communication users proposed for the Plaintiffs tower are not inherently beneficial uses. The Board resolution so stated in Paragraph 11, Page 15. Since the wireless communication facilities are not an inherently beneficial use, Plaintiff, as with its WAWZ antenna use, was required to meet the "particular suitability" standard.While Pillar contends both the WAWZ and mobile communication uses satisfy the positive criteria since it has proven that "the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought."Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279 (1967), the Board, in Paragraph 12 of its resolution, determined that this standard was not met. Consistent with the testimony of John Chadwick, it determined that although the site, due to its height, is unique, more is required in order to reach the conclusion that it is particularly suited. As the Defendants stated, the topographic level of the Pillar site would also be quite suitable for a restaurant, high rise apartment or office complex due to its view of the surrounding area. Site suitability must take into account the character of the neighborhood within which the use is to be placed. As stated inSmart, SMR, at 331A mobile communications facility, which requires construction of a tower, or monopole, is not suitable for every site. Although such facilities may promote the general welfare, towers and monopoles can pose special land use problems. . . In sum, whether or not a radio transmission or monopole will substantially impair the character of a neighborhood will depend on the circumstances of the case.The testimony of John Chadwick, indicated that the Pillar site was not particularly suitable because such use, where proposed, is fundamentally in conflict with the local and county statewide land use policies applicable to the area. The site's location is on the Second Watchung Ridge, an open space area desired by the County to be preserved, in part, for its viewscape and aesthetic value. This goal was also confirmed by Pillar's planning expert, John Madden. (page 33 of Defendants Statement of Facts).The immediate neighborhood, unlike its development status in 1968, when the existing Pillar tower was built, is substantially different. It is no longer an area of vacant rural land, but is now built up with predominately expensive single family homes. (Page 37 of Statement of Facts). Pillar proposes to erect a 440 foot tower, which is double the height of the present tower, in this residential zone. This height equates roughly to that of a thirty story building. It is an impact that is hard to minimize, much less ignore. The defendants successfully offered into evidence a report, identified as Exhibit 0-1, prepared by Mona Phillips, who is a co-defendant intervenor in this matter. This exhibit includes a series of photographic images, which through a computerized process created a visual replica of what the Plaintiffs proposed tower would look like from various viewpoints. There was no challenge that the process utilized by Mrs. Phillips in creating the O-1 images was improper, or that she lacked adequate knowledge or expertise in creating the images. Pillar unsuccessfully objected to the introduction of the exhibit. The sole objection was probativity versus prejudice.Evidence Rule 402 permits the introduction in formal judicial proceedings of, "all relevant evidence." Relevant evidence means evidence "having a tendency in reason to prove or disprove any fact of consequence to the detriment of the action." This exhibit can certainly be said to be relevant and probative and the discretion of the board was reasonably exercised.State v. Sands, 76 N.J. 127, 144 (1978) Only where there has been a "clear error of judgment" should a Rule 403 determination be overturned.State v. Koedatick, 112 N.J. 225, 313 (1988) cert. denied 488 U.S. 1017 (1989). No such error is seen here.Given the nature of Exhibit O-1, its similarity in relation to Pillar's visual imagery and lack of any technical deficiency in the creation of the exhibit, the Board did not abuse its discretion in receiving the exhibit into evidence. That exhibit graphically demonstrated the impact that the proposed tower would have upon the neighboring properties. The immensity of the proposed tower, according to a reasonable interpretation of the proofs, was not the result of satisfying any community need but apparently was the result of an arbitrary decision. None of the allegedly inherently beneficial uses necessitated this height. It was an arbitrary determination by Pillars expert. Furthermore, the major use for the proposed tower by any reasonable estimation, is for the attachment of commercial antennae, a use which even Pillar did not contend to be beneficial. As the resolution of the Board notes; "particular suitability must also have a relationship to need." The board determined that Pillar had not presented proofs to establish a "sufficient general welfare interest to support the construction of the tower at this site." The evidence in support of this conclusion, as recited at Pages 16 and 17 of the resolution, is contained in the record, including:1. The fact that WAWZ currently maintains a high quality of service, meets all FCC standards and seeks primarily only to increase its ratings and expand its listenership by broadcasting its coverage area beyond New Jersey.2. The 911 and other governmental agency users need a tower height of 250 feet, and even at 440 feet, the minimal dead spots currently being experienced will not be eliminated.3. The mobile communication users expressed minimal problems with present antenna locations on either the AAT or Pillar towers.4. The tower height of 440 feet is being generated, not by essential needs of any prospective user, but by an informally requested FAA position as to what the maximum tower height could be at the site irrespective of its use.5. The maximum height sought by Pillar, while being proposed as a means of reducing the future number of towers on the Watchung Ridge, is, in reality, as stated by the AAT tower manager, a means of making more money.The negative criteriaPillar is also required to prove that the variance relief, if granted, would not substantially impair the intent and purpose of the zone plan and zoning ordinance as well as not creating a substantial detriment to the public good. This burden is applicable with respect to both inherently beneficial and non-inherently beneficial uses. N.J.S.A. 40:55D-70(d);New Brunswick Cellular Telephone Co. v. Board of Adjustment of South Plainfield,160 N.J. 1, 6 (1999). Further, to satisfy the negative criteria, in addition to proving that the variance can be granted without substantial detriment to the public good, an applicant must demonstrate through an enhanced quality of proof that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.New Brunswick, Id. at 6;Medici, supra at 21-22 andNY SMSA v. Board of Adjustment of Bernards Twp, 324 N.J. Super. 149, 159 (App. Div. 1999).With respect to all of the uses, the Board, in its resolution recognized that it was incumbent upon Pillar to prove the absence of a substantial detriment to the public good, zone plan and land use ordinance.The Board did find that the "visual impact of the tower would be significant"(Resolution Page 19) and that "the construction of the proposed tower would have an adverse impact on real estate values." (Resolution Page 28) The findings include a statement that the "proposed tower is huge and located in a residential zone," with the tower being not only the tallest structure in the "highest residential zone" but in the whole municipality. (Resolution Page 18).SeeCellular Telephone Co. v. Zoning Board of Adjustment of Ho-Ho-Kus, 24 F. Supp. 2d 359 at 369 (D.N.J. 1988, affirmed in part and reversed in part, 197 F. 3d 64 (3rd Cir. 1999) wherein the Court upheld a local board's denial of a variance to construct a 127 foot tall monopole with 27 antennae. In so doing, the Court confirmed the board's fact finding that "construction of the monopole would have a substantially detrimental effect on the surrounding properties primarily because of its adverse visual impact and its effect on real estate values." The Court found that there was substantial evidence on the record to support that conclusion in that the monopole (a) would be the tallest structure in the municipality; (b) would tower over the adjoining residential areas; (c) would be substantially taller than the existing tree line and (d) because the vegetation was primarily deciduous, the monopole would be even more visible for a significant part of the year.Although Pillar presented real estate expert witness testimony that there was no negative impact upon property values, the Board did not give that testimony "much evidential weight. (Resolution Page 18) The treatment of the testimony in this manner is permitted by law. SeeEl Sharer v. Lawrence Township Planning Board, 249 N.J. Super. 323, 330 (App. Div. 1991) certif. denied 127 N.J. 546 (1992) The Board found the testimony of the real estate experts to be subjective, a determination consistent with the record evidence that the real estate experts had not presented any foundation for their opinions which were based upon comparable sales or studies relating to house sales before and after the construction of any size tower in a residential neighborhood. The visual simulation presentation made on behalf of Pillar was also rejected as being subjective with the Board, relying upon "common sense" to find that the 440 foot tower is going to have a visual impact. (Resolution Page 18) The Board's "common sense" finding is also supported by Pillar's exhibit A-55. (Statement of Fact Page 27 and the objector's visual computer photos, Exhibit O-1). While Pillar trivializes the reference to common sense, the height of the proposed tower can reasonably be characterized as substantial. It is the equivalent of a thirty story building erected in an area that is characterized by single family homes. The objectors computer photos simply confirm an effect that most rational observers would perceive.But there is more than common sense involved in the Boards evaluation. The testimony of John Chadwick, set forth in detail the history of the zoning and land uses in the area. Included in this testimony was his understanding and knowledge of the region as a planner for over 20 years as well as his knowledge of the Township Master Plan, its zoning ordinance, the Somerset County Open Space Plan and the Cross Acceptance Plan of the Township. (Statement of Facts, Page 37)John Chadwick specifically described the area as consisting of predominately substantial expensive single family homes which were developed over the past 15 years with there being significant open space areas particularly along the Watchung Ridge. (Statement of Facts, Page 37) Chadwick undertook a study of the history of the Watchung Ridge and, in confirmation of the testimony of Pillar's planner, John Madden, expressed the 30 year old policy of Somerset County, Bernards, Warren and Bridgewater Townships that this ridge was to be preserved as a "unique geological configuration" which is a natural and irreplaceable viewscape resource. (Statement of Facts, Page 38) Chadwick rendered opinions and reasons for these opinions, related to the proposed 440 foot tower and its prospective users. These included references to the massiveness of the tower, its height relationship to other structures in the area in Bridgewater Township, as well as its inconsistency with the existing permitted uses and master plan goals for the area. The opinions of Mr. Chadwick were that the proposed tower would result in there being a substantial impact upon the zone plan and zoning ordinance.Pillar has assailed the testimony of John Chadwick as merely "net opinion, beyond his professional purview, mistaken, inappropriate and highly speculative." It is not disputed that expert opinion testimony that is not supported by an adequate foundation "is utterly worthless."Castroll v. Franklin Township, 161 N.J. Super. 190, 193 (App. Div. 1978) Expert opinion, however, that is based on facts and data established by evidence at the hearing, is proper and admissible.Skupienski v. Maly, 27 N.J. 240, 246 (1958). Mr. Chadwicks qualifications as a professional planner were stipulated. Before the Board, Mr. Chadwick initially detailed his 20 year experience as a planning consultant, together with his familiarity with the master plans, zoning plans, development and use characteristics of the region that would be impacted by the proposed tower. He summarized the historic policies of the municipalities and the County Open Space Plan relating to the zoning, land uses and goals of preservation of the Second Watchung Ridge. This testimony established a foundation which could fairly and reasonably provide a basis for subsequent opinion testimony. The Board had the right to consider the testimony of John Chadwick in their deliberations and as a basis for their decision.Pillar has cited a number of decisions, discussed previously, regarding the danger of denying an application such as this for aesthetic reasons. As the resolution of the Board demonstrates, the denial of Pillars application was not based exclusively upon aesthetic reasons, although aesthetic considerations did support the denial. Those decisions do support the conclusion that such antenna are not attractive, but are silent on the subject of impact upon value. Few, if any, of the precedents cited by Pillar involved testimony and an exhibit supporting the Boards conclusion of a negative impact on the value of the property. All involved cases where the positive criteria was found to be present, apparently on the basis of inherent benefit.The Board's resolution in Paragraph 13 at Page 17 set forth a finding that Pillar did not meet theMedicienhanced quality of proof that is required with respect to non-inherently beneficial use variances.Medici, supra. at 21 sets forth this enhanced quality of proof standard as follows:In the use-variance context, we believe this can best be achieved by requiring, in addition to proof of special reasons, an enhanced quality of proof and clear and specific findings by the board of adjustment that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance. The applicant's proofs and the board's findings that the variance will not "substantially impair the intent and purpose of the zone plan and zoning ordinance," N.J.S.A. 40:55D-70(d), must reconcile the proposed use variance with the zoning ordinance's omission of the use from those permitted in the zoning district. (Emphasis supplied)Mr. Nebenzahl expressed his opinion that thisMedicistandard was met because the site was particularly suitable. (Statement of Facts, Pages 36 and 37) He offered no testimony or opinion with respect to a reconciliation of the proposed variance with the fact that the Township zoning ordinance and master plan historically did not permit the use in a residential zone.Since theMedicicourt stated that the enhanced proof is to be "in addition to proof of special reasons, and a "special reason" under the general welfare provisions of N.J.S.A. 40:55D- 2(a) is particular site suitability, it must follow that particular site suitability does not also constitute the "enhanced quality of proof" standard. Absent satisfying theMedicienhanced proof standard as to the non-inherently beneficial uses, the application has not met the negative proofs.The Board resolution also considered the application as if several of the proposed uses were inherently beneficial. (Resolution, Page 19) In so doing, it undertook an analysis of theSICAprocess and found that the public interest to be served by the uses to be expanded unto the 440 foot tower was not substantial; that the identified detriments cannot be reasonably ameliorated with reasonable conditions and, upon balance, the grant of the variance relief requested would result in a substantial detriment to the public good.The record proofs, as detailed in the Statement of Facts, support this finding and the conclusion. Pillar in seeking to overturn the Board's decision "has the heavy burden of proving that the evidence presented to the board was so overwhelming in favor of the applicant that the board's action can be said to be arbitrary, capricious or unreasonable.Medical Realty v. Board of Adjustment of Summit, 228 N.J. Super. 226, 233 (App. Div. 1988)In sum, this court finds that the Boards denial of the instant variance application was not arbitrary, capricious and unreasonable. The denial was well supported by the record and this States legal precedent. The only positive criteria for granting this variance is the limited benefit that would be reaped by the 911 and governmental users. This benefit is, however, dramatically outweighed by the detriment that would ensue from granting this variance.CONCLUSIONFor all the foregoing reasons, this Court finds that the actions of the Bridgewater Township Planning Board in denying the Plaintiffs request for a variance was not arbitrary, capricious or unreasonable. Nor did its decision result in a violation of any of the rights afforded to Plaintiff under the Telecommunications Act. For these reasons,the denial of Plaintiffs application is affirmed.This Court will retain jurisdiction for a period of 30 days to allow the Plaintiff to make application for a remand to the Board to consider an approval with conditions. There is evidence in the record which would justify consideration of a conditional approval of a tower at a substantially lower height, but there is no indication that Pillar was amenable to a reduction in the height of the tower. Such a remand would serve no useful purpose unless there was some interest in such a change on the part of Pillar. If the Court does not issue a further order on this matter by October 7, 2000, jurisdiction will no longer be retained.(1)

Background on the case and the three main issues -The Pillar of Fire, Inc., Plaintiff vs Bridgewater Township Board of Adjustment, Defendant and Tri Township Committee for a Beautiful Ridge, and Howard Weinerman, Defendant-Intervenors, here on referred to as Pillar, Board and Tri-Township respectively have all made excellent points of their own.Pillar Want to demolish the 200-foot pre-existing tower to build a 440 foot tower instead with provisions for 390commercial antennae and 12 24 cellular antennae along with the previously existing WAWZ FM radio antenna. They have accused the Board of being arbitrary and capricious in denying the proposal.Board and Tri-Township Denied the proposal on the grounds of several issues including that the tower would not serve any further beneficial use for the public good nor would it be aesthetically pleasing in the concerned area.Yet, the court made its final decision based on the all the issues and concerns that faced the erection of the 440 foot tower proposed by the Pillar. 3 of the main issues that played a vital role in helping the Court conclude with its decision are as follows:

In the prerogative writ instituted by Pillar INC, they have challenged the order and denial from Board of Adjustment of the Township of Bridgewater for the use of variance granted to them in 1968. Pillar challenged that denial of the relief sought was random & violative of The Federal Communications Act, and the action was violative of Federal Law.Pillar had constructed a 226 feet high transmitter tower in Bridgewater Township in 1968 .Without any further zoning approvals Pillar expanded the tower by adding 29 commercial antennae. Pillar during argument represented that, if the proposed tower was approved, the AAT tower, which contains 29 commercial antennae for which the variance was approved, would also be demolished and the antennae would be relocated on the tower to be erected.

In this case pillar known as the non-profit religious corporation which operates FM , WAWZ stations have challenged the denial order from Board Of adjustment of township of Bridgewater for use of the 29 additional commercial antenna which were not granted in 1968 variance.As per the Bridge water township,John Chadwick, Tri township committee for a beautiful ridge and Howard Weinerman this Expansion is against the Federal Communication Want to replace their exciting 226 ft. tower with 440 ft. with 20-25 cellular antenna and 390 commercial antenna. Pillar have accused the Board of being arbitrary and capricious for refusing the proposal.Main issues against Pillar were aesthetic appearance, decrease in property value and Site suitability.

The impact on Property value due to the new high tower Though Pillar provided evidence that the real estate prices will in no way be impacted due to the erection of the tower, the Board dismissed the evidences as being subjective and the real estate experts had not presented a solid foundation for their opinions. The experts based their evidence on general statistics of real estate prices before and after the erection of a tower in the neighboring area. This was not sufficient for the Court either to consider as strong evidence. Therefore, Court concluded that the impact on real estate value will be negative

The Board and other board supporters raised the argument that the property value will decrease if there is a tall not pretty transmitting tower.But they dont have any on-paper evidence which supports the statement. The experts report were based their evidence on general statistics of real estate prices before and after the erection of a tower in the neighboring area. This was not sufficient for the Court either to consider the report as a strong evidence. Therefore, Court concluded that the impact on real estate value will be negative and tower wont affect the property value.

1. Aesthetic Apperence Bridgewater Township is built up with predominately expensive single family homes. A 440-foot tower would definitely be an eye-sore to an otherwise picturesque landscape. Although, aesthetic reasons alone are not enough to deny the proposal, in conjunction with the other issues, it forms a stable ground on which denial can be issued. Apart from aesthetic reasons, the tower is proposed to be built on the Second Watchung Ridge, which makes way for preservation reasons to also play an important role. While this high peak needs to be preserved and maintained, the tower which is not inherently beneficial, will only be marring the otherwise beautiful Ridge.

1. Aesthetic Appearance Bridgewater Township is located Residential especially in a single family residential zone requiring a minimum lot area of 50000 sq.ft. A 440 ft tower would definitely be an eye-sore to residents. Court concluded that the aesthetic reasons alone are not enough to refute the proposal.If there are other supporting issues then it forms a stable ground on which denial can be issued. Apart from aesthetic reasons, the tower is proposed to be built on the Second Watchung As the Defendants stated, the topographic level of the Pillar site would also be quite suitable for a restaurant, high rise apartment or office complex due to its view of the surrounding area. Site suitability must take into account the character of the neighborhood within which the use is to be placedPillar site is located at second tallest site of that area .It is located on 686 feet height this elevation level is quite suitable for the restaurant, high rise tower and Office complex. Apart from this the site is highest in zoning area R3 which is know as Second ridge which should be prevented for its Viewscape and natural beauty.

There are several factors which must be taken into account before granting the varience.It must have some positive effects on society which makes it worth and it should not have any negative impact on the nature as well as to the community.The variance can be granted if and only the appeal does not have any negative impact on public good. Apart from this it should have some positive effects on the society (like pillar: tower will improve the existing 911 service).There are the criteria which makes the appeal valid and worthy. Hence it can be treated as a special case So there are many factors comes into the picture while seeking a variance.

Before the board can grant a variance, it must make sure of two things1. That there must be some special reasons that exist for that variance (positive criteria).The term special reasons can imply many things and has been the subject of many decisions. They may include reasons that advance the purpose of zoning, such as the promotion of general welfare and safety of the community, appropriate use of property, the providing of sufficient space and appropriate location for a variety of agricultural, residential, recreation, commercial and industrial uses and open space, both public and private, in order to meet the needs of all New Jersey citizens, not simply residents of a particular Borough or Township.1. The variance can be granted if the appeal does not cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zoning plan With regard to the negative criteria, the detriment to the public and not adhering to the zone plan are two separate things but they are generally considered together since in almost all the cases the variance will be detrimental to the public because it is inappropriate to the zone.Since so many factors come into the picture while seeking a variance its uncertainty is justified.