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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,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS, DEFENDANT.



The opinion of the court was delivered by: Debevoise, Senior District Judge.

    OPINION

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' cross-motion denied.

I. BACKGROUND

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.

B. The Proposed Site

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.

D. The Application

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"). Id.

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.

II. DISCUSSION

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 & ...


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