services or was the result of an effort to discriminate among
providers, it should be affirmed.
While the Board contends that this portion of the Cellular
Telephone opinion supports its position, it overlooks other
applicable legal requirements. There is no question that local
land use law is controlling in all instances except for those
outlined above. These limited exceptions, however, do not excuse
a local planning or zoning board from the "substantial evidence"
requirement under the TCA. A local board cannot, under any
circumstance, deny variance applications like the one in this
case for purely arbitrary reasons. Substantial evidence is
always required in order to ensure that zoning decisions of this
nature are not arbitrary and are made with sufficient
justification. See 24 F. Supp.2d at 366.
Cellular Telephone is distinguishable from the case at bar
for the simple reason that the municipal zoning board in that
case based its decision on substantial evidence. The board not
only received expert testimony from the cellular company, but it
also heard expert testimony about the detrimental effects the
monopole would have on the aesthetics of the area as well as the
damage it would do to the residential property values in the
neighborhood. Id. at 371. Additionally, members of the
community supplied the board with a non-scientific test of the
actual cellular service available in the town. Id at 372.
While the court held that this test was not conclusive, it did
note that it was the only "recorded examples of cellular
telephone calls placed within the area to be served by the
monopole." Id. These recordings allowed the board to hear the
quality of cellular service in the area and determine the
necessity of the facility. Finally, the board issued a well
reasoned thirty-six page resolution explaining its findings of
fact, the applicable legal principles, its analysis, and its
Substantial evidence was clearly present in Cellular
Telephone. That is not the situation in the case at bar. As
previously stated, the Board only received expert testimony and
evidence from AT & T. No expert testimony or evidence was
introduced to rebut the material produced by AT & T.
Additionally, no evidence was produced to show that the
aesthetics of the area or the property values of the
neighborhood would be jeopardized by the existence of the
facility. Furthermore, there were no tests conducted by experts
or members of the community to verify the quality of the
existing cellular service. Finally, the Board's resolution in
the case at bar consisted of less than five full typewritten
pages of conclusory statements. No evidence was discussed and
the expert testimony was mentioned only in passing. This
resolution lacked the length and in-depth analysis which was
present in the Cellular One case and which the court found to
satisfy the "substantial evidence" requirement.*fn3
Accordingly, the Board's decision cannot be sustained on the
record before this Court.
AT & T seeks an injunction directing the Board to approve its
application so as to remove any further obstacles to its
construction of the proposed cell site. Although the Board has
not requested it, it is appropriate to consider whether remand
for further consideration is proper. See Virginia Metronet v.
Board of Supervisors of James City County, 984 F. Supp. 966, 977
(E.D.Va. 1998); AT&T Wireless PCS v. City Council of Virginia
Beach, 979 F. Supp. 416, 431 (E.D.Va. 1997). The TCA directs
that a district court shall decide suits on an expedited basis.
47 U.S.C. § 332(c)(7)(B)(v). Because of the extensive delay that
has already occurred in this case, a remand for further proceedings
is not appropriate. See Virginia Metronet, 984 F. Supp. at 977;
AT&T Wireless PCS, 979 F. Supp. at 431; Illinois RSA No. 3,
Inc. v. County of Peoria, 963 F. Supp. 732, 747 (C.D.Ill. 1997);
Western PCS II Corp. v. Extraterritorial Zoning Auth.,
957 F. Supp. 1230, 1239-40 (N.M. 1997); BellSouth Mobility, Inc. v.
Gwinnett County, 944 F. Supp. 923, 929 (N.D.Ga. 1996). Despite
having the opportunity to do so, the Board has failed to provide
a decision supported by substantial evidence as required by the
TCA. See 47 U.S.C. § 332(c)(7)(B)(iii). The Board was aware of
the TCA and its requirements but failed to comply with them.
Remand would serve only to further delay the resolution of this
matter and frustrate the intent of the TCA. Accordingly, AT &
T's request for an injunction directing the Board to grant the
Application will be granted.*fn4
For the reasons set for above, AT & T's motion for summary
judgment will be granted and the Board's cross-motion will be
denied. An appropriate order will issue.
Plaintiff, Cellular Telephone Company, d/b/a AT & T Wireless
Services ("Plaintiff"), and defendant, Board of Adjustment of
the Borough of Paramus ("Defendant"), having cross-moved for
summary judgment; and the Court having heard oral argument on
January 25, 1999; and in accordance with this Court's opinion of
IT IS this 26th day of January 1999, hereby
ORDERED that Plaintiffs motion for summary judgment be and
hereby is GRANTED and Defendant's motion for summary judgment
be and hereby is DENIED; and it is further
ORDERED that Defendant is to grant Plaintiffs application
for special use variances within twenty days of the date of this