New Brunswick Cellular Telephone Co. v. Borough of South Plainfield Board

SHEBELL, P.J.A.D. Our decision in the within matter, New Brunswick Telephone v. South Plainfield, 305 N.J.Super. 151, 701 A.2d 1281 (App.Div.1997), having contained a dissent by Judge D’Annunzio, was appealed as-of-right to the Supreme Court. Upon motion for summary reversal, the Court, by order dated April 12, 1998, denied the motion but “summarily remanded to the Appellate Division for reconsideration in the light of Smart SMR v. Fairlawn [Fair Lawn], 152 N.J. 309, 704 A.2d 1271 (1908 [1998]).” [104] Upon reconsideration, we have carefully reviewed the arguments set forth in the parties’ remand briefs and have reconsidered the entire record in light of Smart SMR v. Fair Lawn, supra. In our previous opinion, we noted that “the public interest at stake” under Sica v. Board of Adjustment of Township of Wall, 127 N.J. 152, 165-66, 603 A.2d 30 (1992) was clearly identified. New Brunswick Tel, supra, 305 N.J.Super. at 168, 701 A.2d 1281. In this regard, we accepted the Board’s evaluation, which was well grounded in the testimony presented at the hearings, that “the proposed use is significantly less compelling than other types of beneficial uses____” Id. We concluded that the Board properly balanced the positive and negative criteria to determine whether the variance could be granted without substantial detriment to the public good. Id. at 169, 701 A.2d 1281. Thus, we are satisfied that our decision in the within matter fully comports with the law as declared by the Supreme Court in Smart SMR v. Fair Lawn, supra. Therefore, we reaffirm our decision reversing the Law Division’s determination that the Board acted arbitrary, capricious, and unreasonable. Our reversal of the Law Division’s judgment reversing the Board stands by majority vote of this court.