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CELLULAR TELEPHONE CO. v. ZONING BD. OF ADJUSTMENT

April 6, 2000

CELLULAR TELEPHONE COMPANY D/B/A AT & T WIRELESS SERVICES, PLAINTIFF,
V.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF HARRINGTON PARK, DEFENDANT.



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

  AMENDED OPINION

I. INTRODUCTION

Desiring to alleviate coverage and capacity problems in Harrington Park, Plaintiff Cellular Telephone Company d/b/a AT & T Wireless Services ("AT & T Wireless") applied to Defendant Zoning Board of Adjustment of the Borough of Harrington Park (the "Board") for use and bulk variances and for site plan approval to construct a 100 foot cellular telephone monopole and a prefabricated twelve-foot by twenty-foot building for related computerized equipment.

After conducting six hearings at which four expert witnesses of AT & T Wireless testified, and after considering the testimony of its own planner, professional engineer and another expert's report, as well as comments from objectors, the Board denied the application.

AT & T Wireless then filed this law suit claiming that the Board violated the Telecommunications Act of 1996 as well as the municipal land use law of New Jersey. It wants this Court to issue an injunction requiring the Board to approve the application.

The briefs of the parties interpreting the evidence are worthy of a play by Pirandello: AT & T Wireless emphasizes that the site, located in an Industrial Zone, would remedy the documented deficiencies in its communications net work while the Board, denying the existence of a significant coverage gap, stresses the overutilization of the site by the existing non conforming uses — a residence, two small offices in the basement of the residence, a one-story block structure with three business tenants along with ten eight-foot by twenty-foot storage trailers used by the businesses and the owner. To AT & T Wireless, the site is suitable because the zoning is appropriate and the use passive. To the Board, the site is unsuitable because of the chaotic condition of the many uses already on a corner lot, a little less than a half an acre in size.

The Court agrees with both parties that the litigation can be resolved on their cross motions for summary judgment. What makes this case troublesome for the Court is that while the Board's denial is correct, its thirty-six page resolution is a smorgasbord of reasons, which at times appear to be pretextual, rather than a balanced evaluation of the evidence. Despite the fact that some of the Board's findings are not factually supportable and some of its conclusions are not legally sustainable, the question to be resolved is whether the record as a whole supports the Board's denial of the variances and site plan.

II. JURISDICTION, APPLICABLE LAW AND STANDARD OF REVIEW

A. Jurisdiction

While decisions of local zoning and planning officials are generally a matter of local concern, and absent constitutional considerations their decisions are not the subject matter of federal court review, the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(v), ("TCA"), gives this Court jurisdiction to adjudicate the claim that the Board's denial violated the TCA. The Court has supplemental jurisdiction to adjudicate Plaintiff's action in lieu of prerogative writ, challenging the Board's denial on state law grounds under. 28 U.S.C. § 1367.

B. Applicable Law

1. Telecommunications Act

The Telecommunications Act, 47 U.S.C. § 332(c)(7) provides:

(7) Preservation of local zoning authority

(A) General authority

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations

(i) The regulations of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities 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.
(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.
(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions.
(v) 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, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

In applying the TCA to a zoning board's denial of a use variance, the Third Circuit has made it clear that the TCA is violated when either a general policy or an individual decision prohibits, or has the effect of prohibiting personal wireless services. Cellular Telephone Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir. 1999). Moreover, a decision has the effect of prohibiting wireless communication services if it results in "`significant gaps' in the availability of wireless services." Ibid. It is up to the district court to determine what constitutes a significant gap in service and whether the gap can be closed by less intrusive means. Ibid.

2. New Jersey Land Use Regulation

The regulation of the use of land in New Jersey is a combination (often bewildering) of state statutes, municipal ordinances, and of course, judicial decisions. The starting point here is N.J.S.A. 40:55D-70(d)*fn1 which gives to the zoning board of adjustment the power to:

(d) In particular cases and for special reasons, grant a variance to allow . . . a use or*fn2 principal structure in a district restricted against such use or principal structure. But no variance or other relief may be granted under the terms of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

(footnote added). In addition to granting what is called a use variance, N.J.S.A. 40:55D-70 gives the board of adjustment the power to grant what is called a bulk or dimensional variance:

Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship

To flesh out the statutory grounds for granting a use variance, judicial decisions have developed what is called the "positive criteria" and the "negative criteria." To satisfy the positive criteria, the applicant has the burden of proving that the use promotes the general welfare. A use is considered to promote the general welfare if the proposed site is particularly suitable for the proposed use. Medici v. BPR Co., 107 N.J. 1, 4 526 A.2d 109 (1987); Smart SMR of New York, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 323, 704 A.2d 1271 (1998); New Brunswick Cellular Telephone Co. v. Borough of South Plainfield Bd. of Adjustment, 160 N.J. 1, 5, 733 A.2d 442 (1999). To satisfy the negative criteria the burden*fn3 is on the applicant to prove that the variance can be granted "`without substantial detriment to the public good.'" Smart, 152 N.J. at 323, 704 A.2d 1271. When the use is not an inherently beneficial one, the "applicant must also demonstrate through `an enhanced quality of proof . . . that the variance sought is not inconsistent with the intent and purpose of the master plan and zoning ordinance.'" Ibid.; New Brunswick Cellular, 160 N.J. at 5, 733 A.2d 442.

If a use is designated as an inherently beneficial one, such as a nursing home or hospital for the emotionally disturbed, there is a presumption that the positive criteria is satisfied and the need to satisfy the negative criteria by an enhanced quality of proof is eliminated. New Brunswick Cellular, 160 N.J. at 5, 733 A.2d 442. Where the use is an inherently beneficial one, the grant of a use variance "depends on balancing the positive and negative criteria." Ibid. (quoting Smart, 152 N.J. at 324, 704 A.2d 1271). The Supreme Court of New Jersey has declined to declare that a monopole, such as the one at issue here, is an inherently beneficial use. Smart, 152 N.J. at 331, 704 A.2d 1271, but has recognized that it serves the general welfare.*fn4 Id. at 332, 704 A.2d 1271; New Brunswick Cellular, 160 N.J. at 5, 733 A.2d 442.

C. Standard of Review

Two standards of review are applicable with respect to the federal claim, depending on what section of the TCA is involved: (1) the substantial evidence standard with deference to local findings; and (2) the non-deferential standard.

When reviewing a Board's denial of an application to place, construct, or modify personal wireless service facilities, the reviewing court's task is to determine whether there is substantial evidence in the record as a whole to support the challenged decision. The TCA requires that the decision of the Board "be in writing and supported, by substantial evidence contained in a written record." See 47 U.S.C. § 332(c)(7)(B)(iii). Evidence is considered to be substantial if a reasonable mind could accept it as adequate to support a conclusion. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d at 71. The evidence need not be large or considerable. Ibid. The Court cannot weigh the evidence or substitute its own conclusions for those of the Board. Ibid. The task of the court is to determine whether there is substantial evidence in the record as a whole to support the Board's denial of the variances and site plan. Where there is conflicting evidence, the Board, as the fact finder, must adequately explain its reasons for rejecting or discrediting competent evidence. Ibid.

However, the substantial evidence standard does not apply in reviewing a Board's findings that there are no significant gaps in the wireless service. Ibid. The mandate of 47 U.S.C. § 332(c)(7)(B)(i)(II) that a State or local government or instrumentality thereof "shall not prohibit or have the effect of prohibiting the provision of personal wireless services" is a "statutory bar against regulatory prohibition [that] is absolute and does not anticipate any deference to local findings." Ibid.

Under New Jersey law a decision of a zoning board can be set aside only when it is "arbitrary, capricious or unreasonable." Medici, 107 N.J. at 15, 526 A.2d 109. The Court cannot substitute its judgment for that of the board even when it is doubtful about the wisdom of the action. In the absence of a clear abuse of discretion the decision stands. "`So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the ...


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