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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, J.s.c.

VILLANUEVA

[235 NJSuper Page 474] 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 ...


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