Verizon Wireless is one step closer to building a cellular communications tower on property at Colts Neck High School after winning an appeal on Jan. 17 against a decision made by the Colts Neck Zoning Board of Adjustment.

Zoning board members were “arbitrary, capricious and unreasonable” in their decision to deny Verizon Wireless’s application for a use variance, preliminary and final site plan approval, and a bulk variance for a cell tower at the high school property off Route 537 and Five Points Road, state Superior Court Judge Patricia Del Bueno Cleary ruled in a case that was heard at the Monmouth County Court House in Freehold.

The court consequently granted approval for all of the variances, besides the bulk variance, for which Cleary said the applicant was not required to prove its case.

Standards set by the Sica balancing test (stemming from a court case) require applicants for use variances to identify potentially positive and negative effects on the community, actions that might lessen unfavorable aspects and the overall balance of the good and bad, Cleary said.

She said the court’s decision came as a result of the Colts Neck zoning board members’ failure to measure the Verizon Wireless application in terms of the test.

“The board must balance the negative against the positive criteria. The board did not consider the positive criteria,” Cleary said. “… (Judging by) the Sica test, the board’s findings were fundamentally flawed.”

The positive criteria included the fact that Verizon Wireless holds a license from the Federal Communications Commission and the tower’s ability to improve a coverage gap in the township, said attorney Rich Stanzione, who testified on behalf of the applicant. Measurements made in 2009 and 2010 showed the network dropped 1.5 to 3.5 percent of calls made in the weak area, Stanzione said.

An expert retained by the zoning board in 2010, Bruce Eisenstein, agreed with Verizon Wireless’s findings, Stanzione said.

Cleary said documents showed that Eisensteinbelieveda2percentrateoflost calls to be excessive.

Attorney Michael Steib, representing Colts Neck, said the applicant never proved that the area near the high school had a gap in coverage. He said Verizon Wireless’s expert testified to the number of dropped calls during a short time period, but did not include the total number of dialed calls.

“If Verizon had the numbers and technology to show failures, they had an obligation to show all of the numbers and not leave the board in the lurch,” Steib said. “ … Numbers tell what you want them to tell sometimes when you package them up in your own report.”

Because the applicant did not provide the desired figures, Steib asked why board members should not consider the conservative estimate of 1.5 percent.

“The board (members) never recognized a gap in coverage, so they never could put anything on the positive side of the Sica balancing test,” Stanzione said.

Regardless, the court found that Verizon Wireless’s experts properly displayed the benefits of the use variance.

The detrimental effects of the cell tower related to the aesthetics of the 130-foot-high monopole and its proximity to residential neighborhoods.

Although Verizon Wireless representa- tives never denied the “visual impact” of the structure, Stanzione said they offered solutions to the problem. The company could camouflage the tower as a silo, a tree or a flagpole, he said.

The silo design would add an undesirable 20 feet to the height of the monopole and the tree would tack on 5 more feet, Steib said.

“The tower offends the atmosphere laid out in the master plan for the community and the zoning code,” he said.

The court found that although the applicant proposed actions to minimize the undesirable effects of the structure’s height, zoning board members refused to consider the improvements.

Steib also said zoning board members worried about constructing the tower, which would be accompanied by a utility shed, on a 70-acre parcel that is already fully developed. He said the land already holds a high school and several athletic fields.

“It’s like taking a 5-pound bag that already has 10 pounds in it and adding a few more ounces,” Steib said.

A Colts Neck ordinance regarding cell towers requires the structures to be built on land that is owned or leased by the township, Stanzione said. That requirement left Verizon Wireless with few options to fix the insufficient area of coverage.

Although Colts Neck’s ordinance states that the towers shall not be built on school properties, Stanzione said experts found the land at the high school to be the most viable option for the cell tower. He said the company failed to successfully strike agreements with owners of nearby alternative sites.

Cleary said the high school property is suitable for the facility.

Board members learned of the ruling at their Jan. 19 meeting, Colts Neck Zoning Officer Tim Anfuso said. He said Steib advised the members of their legal options. Anfuso said he expects a decision to be made in an executive session that will be held on Feb. 16.

The issue dates back to 2007 when Freehold Regional High School District Board of Education members made a deal with Verizon Wireless to build the cell tower, according to previously published articles. At the time, the agreement was set to earn the FRHSD $35,000 per year.

Construction of the project required approval by the zoning board. In April 2010, board members denied the application.

After Verizon Wireless filed an appeal contesting the board’s decision, members of the Colts Neck Township Committee voted in 2011 to reject a settlement that would have paved the way for the construction of the cell tower.

Several residents who live near the high school property have battled the project since its inception.