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CELLULAR TELE. v. BOARD ADJUSTMENT BOROUGH PARAMUS
January 27, 1999
CELLULAR TELEPHONE COMPANY, D/B/A AT & T WIRELESS SERVICES, PLAINTIFF,
BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS, DEFENDANT.
The opinion of the court was delivered by: Debevoise, Senior District Judge.
A licensed provider of wireless cellular telephone services
brought this action against a municipality's board of adjustment
claiming that the board's denial of the provider's application
for variances to construct a wireless telecommunications
facility in a residential zone violated the Telecommunications
Act of 1996 and New Jersey state law. The provider, Cellular
Telephone Company, d/b/a AT & T Wireless Services ("AT & T"),
and the municipality's board, the Board of Adjustment of the
Borough of Paramus (the "Board"), have filed cross-motions for
summary judgment pursuant to Fed.R.Civ.P. 56. Oral argument was
heard on January 25, 1999. For the reasons set forth below, AT &
T's motion for summary judgment will be granted, and the Board'
AT & T is licensed by the FCC to provide wireless
communications to the Paramus, New Jersey area. See Vinci
Aff., Exhibit A, October 3, 1996, hearing transcript, at 8-9;
Complaint ¶ 8; Answer ¶ 8. Because of gaps in coverage in AT &
T's wireless network in and around Paramus, AT & T sought to
locate a new wireless service facility in Paramus to meet the
needs of its current and future customers.
A. The Need for the Proposed Site
AT & T identified an area in Paramus, particularly along
Paramus and Century Roads, as an area with particular wireless
telephone service deficiencies (the "Paramus Road Coverage
Gap"). See Complaint ¶ 20; Answer ¶ 20. In this area, a
handheld portable phone user will experience static on the line,
garbled voices, and a drop in quality far below the service that
AT & T is attempting to offer. See Vinci Aff., Exhibit A,
October 3, 1996, hearing transcript, at 16. To fill this
coverage gap AT & T found it necessary to locate a new cell site
in the area. See Complaint ¶ 21; Answer ¶ 21.
The proposed wireless service facility, or "cell site", would
be part of an integrated cellular-system designed to minimize
service deficiencies. Through implementation of the Paramus
site, AT & T sought to maximize the use of its FCC-licensed
frequencies by operating a cellular network using a
honeycomb-like pattern of separate areas called "cells." See
Vinci Aff., Exhibit A, October 3, 1996, hearing transcript, at
11-14, 75-76, 78-79. This site would allegedly have provided
uninterrupted service and would alleviate the coverage gap that
existed in the Paramus area.
Using specialized communications testing equipment, AT & T
found property in Paramus on which a cell site could be located
to alleviate the Paramus Road Coverage Gap. See Complaint ¶
22; Answer ¶ 22. The property, located at 293 Paramus Road, is
owned by Stephenson Associates (the "Stephenson Property").
Id. AT & T entered into a lease with Stephenson Associates for
a small portion of the property. Id. ¶ 23.
Although the Stephenson Property is located in an area zoned
"residential," the property is currently occupied by the Paramus
Tire Company, a commercial retail and automotive repair
business. Id. The balance of the property is primarily a paved
parking lot and driveway for the tire company. See Vinci Aff.,
Exhibit B, January 9, 1997, hearing transcript, at 11.
The monopole itself would be constructed of galvanized steel
and would have a width of approximately two feet at the base and
approximately one foot at the top. Id. at 13. It would be
supported by a reinforced concrete foundation extending fifteen
to twenty feet into the ground. Id. at 14. The monopole would
hold three low-profile antennae attached close to the pole and
extending down the pole, each of which would be twelve inches
wide and eight feet long. Id. at 13.
The facility would not have any general lighting that could
cause a disturbance. Id. at 14. Lighting would only be
installed adjacent to the equipment shelter door, and operated
by a motion detector, to provide light on the shelter's stairway
if necessary for maintenance. Id. The facility would also be
unmanned, but monitored remotely twenty-four hours a day. Id.
at 12, 17-18. The site would be visited by a technician only
once or twice a month. See Vinci Aff., Exhibit A, October 3,
1996, hearing transcript, at 36-37.
C. The Search for Other Possible Sites
Before deciding that it would have to install a monopole, AT &
T attempted to locate the necessary antennae on an existing
structure. Id. at 18. AT & T also considered all alternative
sites that might serve to fill the Paramus Road Coverage Gap.
Id. In all, AT & T considered eight other possible sites.
Id. at 19-28. These included five existing structures and
three sites that would have required the installation of a
monopole. Id. None of these sites, however, were viable either
because the property owner was unwilling to lease space to AT &
T, or because the site did not satisfy the engineering criteria.
Id. AT & T also searched for any possible sites on which it
could co-locate, with another carrier, the needed antennae, but
no such site was available. Id. at 29. Only the Stephenson
Property satisfied the engineering criteria to fill the Paramus
Road Coverage Gap and was available for lease by AT & T.
The Stephenson Property is located in an R-100 residential
zone. See Complaint, ¶ 25; Answer ¶ 25. Under section 429-43
of the Borough Zoning Ordinances, the proposed
telecommunications facility is not a permitted use. Id.
Accordingly, AT & T filed an application for use variance
relief, in addition to site plan approval (the "Application").
The Borough Zoning Officer thereafter determined that the
Borough would require a number of other variances. Id. AT & T
complied with this finding and also applied for a variance for
more than one principal use per site, a variance for height in
excess of the thirty-two foot limit, a variance for minimum rear
yard of less than thirty feet, a variance for less than a
twenty-five foot buffer to adjacent residential properties, and
a variance for impervious coverage of over fifty percent. Id.
E. The Hearings and Denial of the Application
The Board conducted three hearings on the Application on
October 3, 1996, January 9, 1997, and March 20, 1997. The public
hearings culminated in a March 20, 1997, vote by the Board to
deny AT & T's Application. See Complaint ¶ 40; Answer ¶ 40.
About two months later, on May 15, 1997, the Board adopted a
resolution memorializing its decision (the "Resolution"). Id.
at ¶ 41; Vinci Aff., Exhibit F.
In its Resolution, the Board of Adjustment concluded that a
one percent increase of impervious coverage "would create a
substantial overutilization of the site," the requested
variances relating to insufficient rear yard setback and minimum
buffer requirements would also result in the overutilization of
the property, AT & T "failed to provide competent proofs that
there would be no increased run off from the site due to the
additional impervious coverage," the "aesthetic impact of the
monopole and building is in conflict with the surrounding
residential uses and would detract from the character and
appearance of the area," and AT & T "failed to provide
sufficient proofs that the monopole and antennas would not
create a hazard in high winds and endanger nearby residents."
See Vinci Aff., Exhibit F ¶¶ 3-7. AT & T filed this lawsuit on
June 13, 1997.
Both AT & T and the Board have moved for summary judgment. AT
& T seeks an injunction instructing the Board to approve its
application. In support of this request, AT & T argues that the
Board, when it denied the application, did not base its decision
on "substantial evidence." Additionally, AT & T argues that the
denial of its application violated the Federal
Telecommunications Act of 1996 (the "TCA") in that it had the
effect of prohibiting wireless services. Finally, AT & T argues
that the Board's denial of its application was a violation of
New Jersey state law. The Board seeks an order upholding its
decision to deny AT & ...