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

New Jersey Superior Court, Law Division

Decided: May 9, 1989.


Villanueva, J.s.c.


[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.

[235 NJSuper Page 475]

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.


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.

[235 NJSuper Page 476]

(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.

[235 NJSuper Page 477]

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 in fact prevents the reception of satellite-delivered signals on properties such as the Agenses.

Finally, plaintiffs seek attorneys fees and costs of suit pursuant to 42 U.S.C.A. § 1988, since the Nutley ordinance has been preempted by FCC regulation and enforcement of the ordinance allegedly violates plaintiffs' First Amendment rights to receive satellite television signals.


The only New Jersey state court decision regarding federal preemption of local zoning laws involved a remand by the

[235 NJSuper Page 478]

Appellate Division to afford the trial court an opportunity to consider the impact of adoption of the federal regulation upon that controversy. L.I.M.A. Partners v. Borough of Northvale, 219 N.J. Super. 512 (App.Div.1987).

Federal preemption of state or local law is a well-established constitutional doctrine based upon the Constitution's supremacy clause. U.S. Const. Art. VI, cl. 2. See generally J. Nowak, R. Rotunda & J. Young, Constitutional Law, 292-96 (2d ed. 1983).

The fact that federal preemption is being asserted by the FCC via its rulemaking powers does not diminish the weight to be accorded the preemption:

Federal regulations have no less pre-emptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily. When the administrator promulgates regulations intended to pre-empt state law, the court's inquiry is similarly limited: If [h]is choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.

Fidelity Federal Savings and Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153-54, 102 S. Ct. 3014, 3022-23, 73 L. Ed. 2d 664 (1982) [(quoting United States v. Shimer, 367 U.S. 374, 383, 81 S. Ct. 1554, 1560, 6 L. Ed. 2d 908 (1961)].

The Federal Communications Commission adopted a regulation dealing specifically with federal preemption of local zoning entitled "Preemption of local zoning of earth stations":

State and local zoning or other regulations that differentiate between satellite receive-only antennas and other types of antenna facilities are preempted unless such regulations:

(a) Have a reasonable and clearly defined health, safety or aesthetic objective; and

(b) Do not operate to impose unreasonable limitations on, or prevent, reception of satellite delivered signals by receive-only antennas or to impose costs on the users of such antennas that are excessive in light of the purchase and installation cost of the equipment.

[235 NJSuper Page 479]

Regulation of satellite transmitting antennas is preempted in the same manner except that state and local health and safety regulation is not preempted. [47 C.F.R. § 25.104].

This regulation does not preempt all local zoning regulation of satellite dish antennas. Rather, preemption occurs only where the local regulation "'differentiates' between satellite dish antennas and 'other types of antenna facilities.'" L.I.M.A. Partners v. Borough of Northvale, supra, 219 N.J. Super. at 521.

In 1983, Congress passed the Cable Communications Policy Act of 1984 (the "Act") amending the Communications Act of 1934. The main thrust of the legislation was to assure that the exploding market for cable television technology provide the widest possible diversity of information services to the public. See House Committee on Energy and Commerce, Cable Communications Policy Act of 1984, H.R.Rep. No. 89-934, 98th Cong., 2d Sess. 19, reprinted in part in 1984 U.S.Code Cong. & Admin.News 4655, 4656.

Relying in part on the Act's satellite television provisions, see 51 Fed.Reg. 5519, 5522 (1986), the FCC issued the regulation in question.

Nutley recognizes that Congress intended to permit access to satellite transmissions via satellite dish antennas. Congress stated in 47 U.S.C.A. § 605(f) that any rights, obligations, or liability or any applicable, federal, state or local law, shall not be affected by this section; therefore, Nutley urges that the FCC's attempt to preempt is ambiguous. Nutley argues that, at best, the deference which might otherwise be given to administrative interpretations of statutes, see Chevron, U.S.A., Inc. v. Natural Resources Defense, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), should not apply in this case because: (a) local authorities, who are better suited to respond to local zoning needs, have taken a position on this question; (b) First Amendment rights are not violated; and (c) the FCC has no authority to adopt the regulation in question.

[235 NJSuper Page 480]

Statutorily-authorized regulations of a federal agency, such as the Federal Communications Commission, preempt any state or local law that conflicts with the regulations or frustrates the purposes thereof. U.S. Const. Art. VI, cl. 2. City of New York v. F.C.C., 486 U.S. 57, 108 S. Ct. 1637, 1641-44, 100 L. Ed. 2d 48 (1988).

The preemption issue presented here is unusual because the federal regulation establishes standards that govern whether and to what degree the local regulation is preempted.

The intent of the Federal Communications Commission is clearly to preempt local regulation of satellite dish antenna installations which are inconsistent with its regulations. Van Meter v. Township of Maplewood, 696 F. Supp. 1024, 1029 (D.N.J.1988), applying the preemption test set forth in City of New York v. F.C.C., supra, 108 S. Ct. at 1641-44.

The threshold requirement for determining FCC preemption of local regulation of satellite dish antennas under 47 C.F.R. § 25.104 is a finding that the zoning regulation fails to differentiate between satellite receive-only antennas and other types of antenna facilities. Since the Nutley ordinance does not regulate other types of antennas in any manner whatsoever, while regulating and severely limiting satellite dish antennas, this threshold test is met.

The Nutley ordinance limiting installation of dish antennas is preempted unless its requirements have a reasonable and clearly defined health, safety or aesthetic objective. § 240-31.1 of the Nutley ordinance fails to state any such reasonable and clearly defined objective, and is therefore


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