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CELLULAR TEL. CO. v. ZONING BD. OF ADJUSTMENT OF H

October 28, 1998

CELLULAR TELEPHONE COMPANY, d/b/a AT&T WIRELESS SERVICES formerly known as CELLULAR ONE(R), NEW YORK SMSA LIMITED PARTNERSHIP AND ITS GENERAL PARTNER CELLCO PARTNERSHIP, d/b/a BELL ATLANTIC NYNEX MOBILE, and SMART SMR OF NEW YORK, INC., d/b/a NEXTEL COMMUNICATIONS, Plaintiffs,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF HO-HO-KUS, Defendant.



The opinion of the court was delivered by: BARRY

BARRY, District Judge

 This matter comes before the court on the parties' cross-motions for summary judgment as to Count I of the complaint filed by plaintiffs Cellular Telephone Company, d/b/a AT&T Wireless Services ("AT&T Wireless"), New York SMSA Limited Partnership and its general partner Cellco Partnership, d/b/a Bell Atlantic Nynex Mobile ("BANM"), and SMART SMR of New York, Inc., d/b/a Nextel Communications ("Nextel") (collectively as "plaintiffs"). In Count I, plaintiffs assert that the Zoning Board of Adjustment of the Borough of Ho-Ho-Kus ("Board" or "defendant") violated Section 704 of the Telecommunications Act of 1996 ("TCA" or "the Act") when it denied plaintiffs' *fn1" application for variances to construct a wireless telecommunications facility on Lots 3 and 4 in Block 603 of the Borough of Ho-Ho-Kus ("proposed site" or "leased property" or "Borough property"). For the reasons that follow, this court will deny plaintiffs' motion and grant defendant's motion.

 I. Factual Background

 The parties have stipulated to the following facts. BANM and AT&T Wireless are licensed by the Federal Communications Commission ("FCC") to provide wireless cellular phone service to the Borough of Ho-Ho-Kus while Nextel is licensed to provide wireless mobile radio services. See February 23, 1995 Hearing at 63-64; April 13, 1995 Hearing at 157, 166. *fn2" On August 2, 1994, AT&T Wireless, *fn3" as the lead carrier of the three plaintiffs, entered into a land lease agreement with Ho-Ho-Kus to lease a 2,350 square foot portion of property owned by the Borough in order to erect a wireless telecommunications facility. See August 27, 1998 Cespedes Cert. at Exh. A. The lease contemplated that the facility would consist mainly of a wireless communications monopole, associated antennas, related equipment shelters, and fencing. Id. BANM and Nextel then entered into co-location agreements with the Borough in order to install antennas upon the same monopole and utilize a portion of the equipment shelters. Id. The lease agreement with AT&T Wireless was contingent upon the procurement of the required zoning variances, special use permits and building permits. Id. P 7(a).

 The proposed site is located in a R-2 residential zone. See Stipulation of Facts in Final Pretrial Order P 3(46). The site is not now used for residential purposes, however, and a Department of Public Works ("DPW") salt storage barn with accompanying fencing, among other things, is currently located on the northwest corner of the property. Id. ; April 20, 1995 Hearing at 23.

 On September 3, 1994, plaintiffs applied to the Zoning Official for the Borough of Ho-Ho-Kus for variances necessary to construct three buildings, a 125-foot monopole with antennas reaching as high as 127 feet, and a six-foot high barbed wire fence to surround the facility. Stipulation of Facts in Final Pretrial Order P 3(18-19). The proposed monopole would be a cylindrical galvanized steel structure measuring three feet in diameter at its base and eighteen inches in diameter at the top. Id. P 3(20). The twenty seven antennas in a 360 degree array would be attached to the monopole to accommodate all three providers. Id. The site would be unmanned and would be visited approximately once a month for maintenance.

 The application was denied by the Zoning Official on September 16, 1994. Id. P 3(18); April 20, 1995 Hearing at 63. On August 28, 1995, plaintiffs amended the application, reducing the number of equipment shelters from three to two, modifying their size, relocating the layout of the buildings and the monopole within the proposed site, and reducing the height of the fence from six to five feet. Stipulation of Facts in Final Pretrial Order P 3(22-23). The Zoning Official denied plaintiffs' amended application. Id. P 3(24).

 The application and amended application were thereafter brought before the Borough's Zoning Board of Adjustment for thirteen variances from the Zoning Ordinance of the Borough ("Zoning Ordinance"). Over the course of two and one-half years, forty-four public hearings were conducted before the Board regarding plaintiffs' application and amended application. Id. P 3(25). On April 24, 1997, the Zoning Board voted to deny plaintiffs' application and memorialized its decision in a thirty-six page resolution adopted on June 5, 1997 (the "Resolution"). Id. P 3(34-35); August 27, 1998 Cespedes Cert. at Exh. E. The Resolution concluded as follows:

 
The public interest which will be served by the proposed monopole is not substantial, as the quality of cellular telephone service already being provided within the Borough of Ho-Ho-Kus is adequate... The Board [also] finds that the site is inappropriate for that use, given its already congested nature, and [the fact that] numerous bulk variances are required, including one related to the required setback of the structure from the property lines. The Board also finds that the construction of the monopole will have a substantially detrimental impact upon the public good and the purpose and intent of the zone plan and ordinance based upon a significant detrimental visual impact, the construction of such a massive structure on a relatively tiny piece of property, and a significant decline in real property values. The Board finds that on balance ... the balance must be struck in favor of denying the application. The public good being served is not compelling. Due to the nature of the structure, no conditions can be imposed that would reduce the impact, and on balance the negative considerations outweigh the benefits to be obtained.

 This action challenging the Board's denial as violative of the TCA and state law followed.

 II. Discussion

 Generally, a federal court does not second-guess or otherwise interfere with the decisions of local zoning boards. With the amendment of the Federal Telecommunications Act in 1996, however, limited substantive and procedural restrictions were placed upon state and local government regulation of personal wireless service facilities. With respect to the enforcement of these provisions, the TCA states that "any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may . . . commence an action in any court of competent jurisdiction." 47 U.S.C. § 332(c)(7)(B)(v). This court, therefore, has jurisdiction, pursuant to 28 U.S.C. § 1331, to evaluate the Board's compliance with the TCA.

 Summary judgment may be granted if, after consideration of such items as depositions, affidavits or certifications, and after viewing the facts in the light most favorable to the non-moving party, "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The parties concede, and this court agrees, that no material facts are in dispute and that summary judgment is appropriate. The bottom-line question, of course, is which of the parties will be the worthy recipient or recipients.

 In Count I, plaintiffs allege that the Board's June 5, 1997 denial of the application for thirteen variances from the Zoning Ordinance violated several substantive and procedural provisions of the TCA. Specifically, plaintiffs contend that the Board's denial: (1) was not rendered within a reasonable time; (2) was not supported by substantial evidence; (3) amounted to unreasonable discrimination against providers of functionally equivalent personal wireless services; and (4) prohibited or had the effect of prohibiting personal wireless service. See 47 U.S.C. § 332(c)(7)(B)(i-iii). This court does not agree.

 A. Decision Issued within Reasonable Time

 The TCA provides that a state or local government shall act on a request for authorization to construct a personal wireless facility "within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request." 47 U.S.C. § 332(c)(7)(B)(ii). In support of their argument that the Board violated this provision, plaintiffs complain that the Board took approximately two and one-half years to render a decision on the application and "neglected to issue a written decision . . . [until] more than one month after a vote on the application was taken." Pl. Mem. in Supp. of Mot. for Summ. J. at 17.

 The amount of time which elapsed while plaintiffs' application was pending is not dispositive as to whether there was unreasonable delay because "each situation must be independently examined." Virginia Metronet, Inc. v. Board of Supervisors of James City County, Virginia, 984 F. Supp. 966, 977 (E.D. Va. 1998). An examination of this "situation" compels the conclusion that the Board rendered its decision within a reasonable time. From the outset -- notably over a year before the enactment of the TCA -- the Board attempted to provide a fair and public forum for the examination of the application. The hearings before the Board were conducted in quasi-judicial fashion, using the rules of evidence as guidelines. The Board permitted appropriate cross-examination, reasonably accommodated the parties -- including plaintiffs -- when witnesses were unavailable, and limited public questioning to relevant issues. Testimony was taken over numerous days, the majority of the witnesses were called by plaintiffs, and plaintiffs' direct case, rebuttal, and counter-rebuttal filled approximately twenty-three of the thirty-seven days not devoted to the Board deliberations or the parties' summations. Although the process took considerably longer than the 120 days contemplated by New Jersey law, see N.J.S.A. 40:55D-73 (stating that the board of adjustment shall render a decision not later than 120 days from the decision of an administrative officer), plaintiffs consistently consented to extensions of time *fn4" and never complained to the Board that the time spent on the application was violative of the TCA. Indeed, in an effort to expedite the application, the Board expanded its customary schedule of holding one meeting a month and conducted additional meetings during many months, culminating in four meetings a month during the final deliberations. There is no evidence of any intent to keep plaintiffs "tied up in the hearing process[,]" Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 50 (D.Mass. 1997) (citation omitted). Rather, the Board acted conscientiously, affording all parties, including the public, a fair and full opportunity to be heard.

 Certainly, too, the Board acted within a reasonable time in rendering its written decision approximately one month after it voted to deny the application; indeed, the Resolution was issued within the forty-five days contemplated by the Municipal Land Use Law ("MLUL"). See N.J.S.A. 40:55D-10g(2)(allowing municipal agency forty-five days to memorialize resolution granting or denying approval). In any event, the TCA requires that the Board's denial be in writing and supported by substantial evidence. See 47 U.S.C. § 332(c)(7)(B)(iii). Presumably in order to comply with this requirement, the comprehensive thirty-six page Resolution detailed the evidence upon which the Board relied and the conclusions which it reached. Taking approximately one month to do so was eminently reasonable.

 B. Decision Based on Substantial Evidence

 Plaintiffs argue next that the Board's decision was not supported by substantial evidence and thus was violative of the TCA. As noted above, the TCA instructs that "any decision by a State or local government or instrumentality [] to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence . . . ." 47 U.S.C. § 332(c)(7)(B)(iii). The substantial evidence standard "is the traditional standard used for judicial review of agency actions." H.R. Conf. Rep. No. 104-458, at 445-48 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222; Century Cellunet of Southern Michigan, Inc. v. City of Ferrysburg, 993 F. Supp. 1072, 1077 (W.D. Mich. 1997); BellSouth Mobility Inc. v. Gwinnett County, 944 F. Supp. 923 at 928.

 In the context of review of agency decisions, substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); see also Pierce v. Underwood, 487 U.S. 552, 565, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988) (clarifying that a "large or considerable amount of evidence" is not required); Alexander v. Shalala, 927 F. Supp. 785, 791 (D.N.J. 1995) (defining substantial evidence as "more than a mere scintilla, but may be less than a preponderance") (citation omitted), aff'd, 85 F.3d 611 (3d Cir. 1996). Under this definition, a court may not displace an agency's "choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." NLRB v. Greensburg Coca-Cola Bottling Co., Inc., 40 F.3d 669, 673 (3d Cir. 1994) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 95 L. Ed. 456, 71 S. Ct. 456 (1951)). Likewise, in the context of the TCA, the court must affirm a board's decision "even if the court would decide the matter differently." Century Cellunet, 993 F. Supp. at 1077; see also AT&T Wireless PCS, Inc. v. City Council of the City of Virginia Beach, 155 F.3d 423, 1998 WL 553666 at *7 (4th Cir. Sept. 1, 1998).

 That having been said, however, all evidence must have been considered by the Board, adequate explanations for rejecting relevant evidence must have been provided, and the Board's decision must have been "accompanied by a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Thus, while the Board's decision is afforded deference with the burden on plaintiffs to overturn that decision, Century Cellunet, 993 F. Supp. at 1077, this court must scrutinize the entire record and determine whether the decision is rational and supported by substantial evidence.

 In order to determine whether the Board's decision was based on substantial evidence, this court must closely examine New Jersey zoning law. Plaintiffs repeatedly urge this court not to consider the Board's discussion of state law issues because, they contend, the TCA overrides state authority in the area of wireless communications. See, e.g., Pl.'s Mem. in Reply to Def.'s Reply Mem. at 1-2; Pl.'s Mem in Opp. to Def.'s Mot. for Summ. J. at 2. Contrary to plaintiffs' contention, however, state zoning law directly informs this court's determination as to whether the Board based its decision on substantial evidence.

 The TCA explicitly preserves local zoning authority unless the local or state government or instrumentality unreasonably discriminates against providers of personal wireless service, prohibits the provision of such service, or regulates the placement of wireless service facilities on the basis of the environmental effects of radio frequency emissions if the emissions comply with the Commission's regulations. See 47 U.S.C. § 332(c)(7)(B)(i) and (iv). Otherwise, however, the requirement of the TCA that a denial by a state or local government or instrumentality be in writing and based upon substantial evidence "does not affect or encroach upon the substantive standards to be applied under established principles of state and local law." AT&T Wireless Services of Florida, Inc. v. Orange ...


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