On appeal from the Superior Court of New Jersey, Law Division, Camden County.
King, Baime and Keefe. The opinion of the court was delivered by King, P.J.A.D.
[243 NJSuper Page 20] This case requires resolution of the conflict between a local zoning ordinance and a regulation of the Federal Communications Commission applicable to a satellite dish antenna. The Chancery Division judge concluded that in the particular circumstances,
the federal regulatory power preempted the local ordinance. We agree with the trial judge's factual findings and legal conclusions and affirm. We find that local aesthetic considerations, no matter how legitimate, must yield in this case to federal regulatory power.
Plaintiffs, a property owner (Scheurich), and a distributor and installer of satellite dish antennas, Nationwide Satellite Inc. (Nationwide), applied to the Haddon Heights Zoning Board of Adjustment (Board) for a bulk variance to place a satellite dish antenna on the roof of the property owner's home. Their application was denied by the Board. Plaintiffs then brought an action in lieu of prerogative writs challenging the Board's decision. The trial judge eventually decided that pursuant to a rule of the Federal Communications Commission, 47 C.F.R. § 25.104, the Haddon Heights satellite dish antenna ordinance, No. 724, imposed unreasonable limitations upon reception of satellite-delivered signals and was federally preempted. On this appeal, the Board asserts that the municipal ordinance complies with the federal rule and that the trial judge erred when he found the ordinance invalid due to federal preemption.
These are the facts in detail. In 1986, plaintiff Nationwide, a distributor and installer of satellite dish antennas, installed a satellite dish antenna on the front roof of the home owned by plaintiff, George Scheurich, without first obtaining a permit as required by a borough ordinance. The satellite dish is ten feet in diameter and costs $5,500. After installation, Scheurich and Nationwide applied to the Board for variances to permit placing the satellite dish antenna on the roof of Scheurich's home. In October 1986 the Board denied plaintiffs' application. Plaintiffs filed suit.
In June 1987, Judge Lowengrub ruled that a section of the Borough's satellite dish antenna ordinance limiting the size of satellite dish antennas to seven feet violated federal regulations and was invalid. He remanded the matter to the Board. The governing body then amended the satellite dish antenna ordinance,
increasing the permissible satellite dish size to ten feet in diameter.
In November 1987, pursuant to the remand order, plaintiffs again applied to the Board for bulk variances to accommodate the satellite dish antenna on the roof of Scheurich's home. Plaintiffs requested variances from the height, location and screening requirements of the amended Haddon Heights Ordinance No. 724. The amended ordinance provides that a dish antenna is not permitted in the front of any structure and may not exceed a height of 12 feet. The ordinance also requires that the antenna be "screened, buffered or situated in such a manner that it cannot be visually seen from the public right of way abutting the lot on which the structure is situated or visually seen from the ground level of any adjacent property."
On January 14, 1986, the Federal Communications Commission adopted a rule that preempts state and local zoning regulations which differentiate between satellite-receive only antennas and other types of antenna facilities 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. [47 C.F.R. § 25.104.]
Since Ordinance No. 724 applied only to satellite dish antennas, the parties agreed that the Board had to determine whether the ordinance satisfied the federal criteria on unreasonableness and cost-effectiveness. The plaintiffs do not challenge the "reasonable and clearly defined . . . aesthetic objectives" of the Haddon Heights ordinance.
Scheurich's single-story home is located at 1920 Sycamore Street in Haddon Heights. The property has a 50-foot front, a depth of 125 feet, and is located in a residential zone.
In February 1988, Raphael Morales, Nationwide's chief engineer, testified before the Board on behalf of plaintiffs' application.
He explained that a satellite dish antenna operates as a collector for satellite signals and that a satellite dish antenna on the east coast of the United States must have a minimum diameter of ten feet in order to receive satellite signals. He noted that in order to receive signals there must be a direct "line-of-sight" between the satellite and the dish antenna; if this "line" is blocked by a tree or a structure, the signal will not be received.
Morales said that transmitting satellites are located in a geostationary orbit about 23,700 miles above the equator. According to Morales, there are 18 satellites which transmit video or audio signals to the east coast of the United States. They are located in southern, southwestern and western sky elevations. The line-of-sight for these satellites with respect to Scheurich's satellite dish antenna is between 15 and 45 degrees above the horizon. There are seven western satellites, six southwestern satellites, and five southern satellites. Together, they provide about 100 audio channels and 100 video channels. Morales thought that the western satellites were the most important to a typical customer because they transmit most of the premium movie channel signals.
Morales claimed that a "standard" satellite dish antenna is usually installed on the ground and that the center of the satellite dish is generally about seven feet from ground level. He said that a standard satellite dish installation in Scheurich's rear yard is not feasible because the location of two trees on the property and a large tree in a neighboring yard would interfere with reception of satellite signals, including those transmitted by western satellites. In order to position a satellite dish antenna in Scheurich's rear yard for optimum signal reception, Morales said that the satellite dish would have to be mounted on a 35-foot tower. This tower would cost about $3,500 to $4,000 and, of course, would be visible from the street and neighboring yards. Without this enhancing tower, Morales testified that a satellite dish antenna located in Scheurich's rear yard would receive only seven of the 200 available channels.
Morales testified that the satellite dish antenna could be placed, as it is now, on the left-front roof of Scheurich's house to achieve a direct line of sight with all of the satellite signals. Morales said that if the interfering trees were trimmed, a satellite dish antenna could be placed in Scheurich's rear yard and some of the southern satellite signals could be received. However, reception from the western satellites would not be possible. Morales also said that because of the large number of trees in the neighborhood, all of the other neighborhood lots would be unsuitable for ground installation of satellite dish antennas.
Louis Lacatena, owner of a tree service, testified that removal of the offending maple tree in the rear of Scheurich's property and the trimming of a larger tree on the rear of the lot would cost $500. The cost to remove, rather than to trim, the second tree was $300.
Leonard Siegel, a professional engineer, was hired by the Board to evaluate Scheurich's property to determine whether a satellite dish antenna located in the rear of the property would be feasible. Siegel opined that a ground-level satellite dish antenna could be installed in Scheurich's rear yard in accordance with the applicable zoning ordinance. He said that a satellite dish antenna so installed would permit reception from the southern and southwestern satellites and possibly from the western satellites. Moreover, Siegel asserted that if Scheurich's trees were trimmed, clearance and thus signal reception would improve. He conceded that the large tree on the neighboring lot could create signal interference and suggested that perhaps Scheurich and his neighbor could make an agreement to trim or remove that "offending" tree. Ultimately, Siegel admitted that he could not say how a ground-level installation of the satellite dish antenna would affect signal reception from the western satellites. He said that since western-satellite reception required a 15-degree line-of-sight elevation, signal reception would be problematic no matter where the satellite dish antenna was placed. Plaintiff Scheurich testified that
when the satellite dish antenna was operating on the front roof of his house, he did not experience any problem with signal reception.
Joseph Keefer, a real estate broker, also testified. In his opinion, a satellite dish antenna placed on the roof of Scheurich's house would detract from the property values of the surrounding homes. However, during cross-examination, Keefer stated that there were no other satellite dish antennas installed on roofs in Haddon Heights and that he was personally unaware of properties which had been adversely affected by the roof installation of satellite dish antennas.
Finally, three neighbors voiced their concerns about the aesthetic impact of a satellite dish antenna installed on the roof of Scheurich's house. The following comments are representative of the sentiments expressed:
MR. SCOTT: Okay. I've been a resident of the town for over 35 years, and I would hate to think that it's coming to a point, you know, where we have to even do away with our shade tree program as far as the streets and the backyards and everything else goes and to see these antennae, even if they're ground level, even in a backyard, much less on top of a roof. I would just hate to see, you know, if this gentleman has the right to do it, why would I not have the same right or anybody in the neighborhood or in the whole town? It would be one unsightly mess to say the least. Thank you.
MR. DALGLEISH: I'm mainly concerned with the effects on property value. I'm not that far from retirement, and most of the neighbors around me are already retired, and this is sort of an investment in our retirement income. If the property values go down, that's going to affect all of us, and we're somewhat concerned about that aspect of it. So I was glad to hear what the realtor had to say about this. If we can't see the antenna, then I don't imagine it's going to have much effect on property value, but if you can see it wherever it is, it would have some effect in my opinion. A ten-foot antenna on a 20-foot house does look a bit odd, and many ten-foot antennas on quite a few houses would really detract from the appearance of the community. And I would be mainly interested wherever -- whatever you decide, if you keep the ordinance you have now, it sounds okay with me, ...