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Alsar Technology Inc. v. Zoning Board of Adjustment of Town of Nutley

Decided: May 9, 1989.

ALSAR TECHNOLOGY, INC. AND DAVID AGENS AND MILDRED AGENS, PLAINTIFFS,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE TOWN OF NUTLEY, THE MAYOR AND TOWN COUNCIL OF THE TOWN OF NUTLEY, DEFENDANTS.



VILLANUEVA

VILLANUEVA

VILLANUEVA, J.S.C.

The installer of a satellite television dish and homeowners bring this action challenging a local zoning ordinance which limits the size and location of satellite dish antennas which could be installed. They also challenge the denial of a variance to permit such use.

The issues are: (1) whether the ordinance is preempted by federal law; and (2) whether plaintiffs are entitled to the award of attorneys fees pursuant to 42 U.S.C.A. § 1988.

The court holds that the ordinance is preempted by a FCC regulation since it poses an unreasonable burden on reception and is discriminatory. Although the award of attorneys fees to the prevailing party is discretionary, it was clearly the intent of Congress in passing § 1988 that fees should be awarded as a matter of course in all but exceptional cases.

STATEMENT OF FACTS

In February, 1988, Alsar Technology, Inc. applied for a building permit to install a satellite dish (receive only) on the roof of the home of David and Mildred Agens, 25 Craig Place, Nutley. The Code Enforcement Officer denied the application based upon the Code of Nutley, Chapter 240, Article VII Section 240-31.1, which reads as follows:

A. Satellite dishes, as defined in § 240-3, are only permitted as a conditional use as an accessory structure to a principal use and only if all of the following are complied with:

(1) There shall be one (1) per lot or one (1) per principal structure, whichever is less.

(2) The use of the dish shall be solely for the use of such lot or structure.

(3) There shall be a maximum height of seven (7) feet, measured at the highest point of its outer circumference or any extension, including the supporting structure, to grade.

(4) The location shall be:

(a) At least ten (10) feet away from the principal structure.

(b) In the rear yard only, at least eight (8) feet away from adjoining property lines and at least fifty (50) feet away from any front or side street line.

(5) The dish shall be screened from view from adjoining properties and street by evergreen planting which shall be at least seven (7) feet in height at time of planting and which height shall be maintained. Such evergreen planting shall be at least four (4) feet from the outer circumference of the dish, or as otherwise determined by the Planning Board.

(6) All wiring to or from the dish shall be placed underground.

(7) No dish shall be permitted to have any lettering thereon or to be used as an advertising or identification sign.

(8) The color of the dish shall blend with the surroundings and have an open mesh surface.

B. A transmitting dish is not a permitted use except for amateur radio operators licensed by the federal Communications Commission at the licensee's authorized station location. The Planning Board is hereby authorized to grant a conditional use permit for such antennas subject to reasonable requirements, consistent with orders and opinions of the Federal Communications Commission concerning public safety, health and aesthetics.

The Agenses could not comply with these zoning requirements since their backyard is only two feet deep, the sideyards are slightly greater than 10 feet wide, and the front yard setback from street to the front of the house is less than 25 feet. Therefore, the only possible place where they could install a satellite dish is on the roof.

Alsar appealed the construction official's denial to the Nutley Zoning Board of Adjustment seeking a variance pursuant to N.J.S.A. 40:55D-70d. Prior to the hearing on Alsar's application, Alsar, through its attorney, notified the Board, in writing, of § 1 et seq. of the Federal Communications Act, 47 U.S.C.A. § 151 et seq., by which the Federal Communications Commission was created and the regulation it promulgated that preempts state and local zoning of satellite receive-only antennas with two exceptions not applicable herein. 47 C.F.R. § 25.104.

On May 16, 1988, a hearing was held before the Nutley Board of Adjustment on Alsar's application. At that time, Alsar submitted the testimony of the following persons:

1. David Agens, the occupant of the property, regarding the reason why he wanted to install a satellite dish antenna and the reasons why the dish could not be installed anywhere but on the roof.

2. Alvaro Vallecilla, president of Alsar Technology, regarding the physical characteristics of the satellite dish antenna, the strength and safety of the roof-mounted antenna and the manner in which the antenna worked.

3. Emil Hergert, a real estate expert, who testified that in his experience the roof-mounted satellite dish antenna would not detract from the aesthetic value of the property nor the market value of that property or any properties in the neighborhood.

Neighbors who believed that the dish would be unsafe and unattractive opposed the application.

At the completion of the hearing, the Board of Adjustment voted unanimously to deny the variance application. A resolution memorializing this decision, adopted on June 20, 1988, stated, inter alia: (1) the size of the proposed dish by applicant exceeds that permitted by ordinance; (2) the applicant violated the location of the dish with respect to adjacent property lines; and (3) the satellite dish would be located on the roof, which is prohibited. The Board also found that the applicant failed to establish special reasons for the granting of the variance and that § 240-31.1 of the Code of Nutley provides that satellite dishes are permitted only as a conditional use as an accessory structure to a principal use and only if the conditions as enumerated are complied with.

Plaintiffs filed this complaint arguing: first, that the decision of the Board of Adjustment was arbitrary and capricious in view of the FCC's preemption of state and local regulation of satellite dish antennas and considering the overwhelming evidence submitted in support of Alsar's application and the lack of any substantive testimony in opposition to it.

Secondly, plaintiffs assert that Nutley's ordinance regulating dish antennas and prohibiting all roof-mounted dish antennas is illegal and unconstitutional under the preemptive regulations of the Federal Communications Commission, particularly since the ordinance on its face not only fails to have a reasonable and clearly defined health, safety or aesthetic objective, but ...


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