denial rests on legitimate zoning concerns. See Iowa Wireless
Servs. L.P., 29 F. Supp.2d at 924 ("the decision which denied
IW's application articulated other reasons besides that of
F. Unauthorized Withdrawal of Escrow Funds
In its Third Count, AT & T Wireless seeks the return of escrow
fees in the amount of $3,700.00. Over the objection of AT & T
Wireless, see April 24 Tr., 30-41, the Board retained Perry L.
Schwartz to render a report regarding the health effects of the
proposed telecommunications facility. Schwartz did not testify,
but submitted a written report to the Board. April 4, 1997 Report
of Intertech Ass'n, Inc. attached as Ex. 26 to Vinci Aff. ("April
4 Report"). AT & T Wireless claims that the Board cannot
legitimately require it to pay for Schwartz's services because
"the subject upon which Mr. Schwartz would purportedly testify
was not within the jurisdiction of the defendant." Compl., ¶ 59.
In response, the Board, relying on the provisions of N.J.S.A.
40:55D-53.2a, requiring applicants to be responsible for payment
of consultants, contends that it retained Schwartz to "address
the methodology of radio frequency measurements" rather than to
evaluate safety or health issues. Def.'s Br. In Support of Motion
for Summary Judgment, at 37.
The Board was precluded by the TCA from considering the health
consequences of radio frequency emissions. Omnipoint Corp. v.
Zoning Hearing Bd. of Pine Grove Township, 20 F. Supp.2d 875, 880
(E.D.Pa. 1998), aff'd, 181 F.3d 403 (3d Cir. 1999). The health
issue was raised by objectors. Reading the colloquy at the
hearing regarding the Schwartz report as well as the report
itself,*fn10 it appears to this Court that Mr. Schwartz was, in
fact, retained to examine the health consequences of radio
Since the Board did not have the authority to consider the
health consequences of radio frequency emissions, the Board did
not have the right to hire an expert on this subject at the
expense of AT & T Wireless. Therefore, AT & T is entitled to
Judgment in the amount of $3,700.00.
G. Reasonable Time
AT & T Wireless' claim that the Board did not act upon AT & T
Wireless' application within a reasonable period of time is
without merit. AT & T Wireless contends that the Board violated
the TCA by failing to act upon AT & T Wireless' application
within a reasonable period of time. The Board responds that the
seven months that passed between the time that AT & T Wireless
applied for the variances and the time that the Board
memorialized its decision in a resolution, seven months, was
According to the TCA, when an applicant requests a state or
local government to authorize the placement, construction or
modification of a personal wireless service facility, the
government or instrumentality must act "within a reasonable
period of time after the request is duly filed."
47 U.S.C. § 332(c)(7)(B)(ii). Pursuant to the New Jersey Municipal Land Use
Law ("MLUL"), in order to avoid a default judgment in favor of an
applicant, a board must decide whether a variance will be granted
within 120 days of the applicant's original request. N.J.S.A.
40:55D-73(b). Furthermore, the MLUL requires the board to adopt a
resolution memorializing its decision within forty-five days of
the date upon which that decision was made. N.J.S.A.
Both parties agree that AT & T Wireless filed its application
with the Board in September 1996 and that hearings to consider
the application were held on October 24, 1996, November 21, 1996,
December 19, 1996, January 23, 1997, February 27, 1997, and April
24, 1997. FPTO, Stip. of Facts, ¶ 12. Also, the parties do not
dispute that the Board memorialized its decision in a resolution
adopted on May 22, 1997. Id. at ¶ 19. Finally, both AT & T
Wireless and the Board acknowledge that AT & T Wireless extended
the Board's deadline for making a decision until April 30, 1997.
See id. at ¶¶ 15-17.
In a similar case, this Court found that a board responding to
an application submitted by a wireless telecommunications company
acted within a reasonable period of time despite the fact that
the board conducted forty-four hearings over the course of 2½
years before rendering a decision. Zoning Bd. of Adjustment of
the Borough of Ho-Ho-Kus, 24 F. Supp.2d at 365. Central to that
decision was the fact that the applicant consented to extend
Likewise, in this case, AT & T Wireless consented to extend the
deadline until April 30, 1997. As a result, when the Board voted
against the application during the April 24, 1997 meeting, the
Board satisfied the requirement that their decision be rendered
within a reasonable period of time. In addition, when the Board
memorialized its decision by adopting a resolution on May 22,
1997, the Board was well within the forty-five day deadline
required by the MLUL.
Plaintiff AT & T Wireless has not shown that it is legally
entitled to a reversal of Defendant's denial of its application
for variances and site plan approval necessary to construct a one
hundred foot monopole with cellular telephone antennas attached
and a twelve-foot by twenty-foot equipment shelter housing
ancillary telecommunications equipment. Judgment will therefore
be entered against Plaintiff AT & T Wireless on its motion for
summary judgment and in favor of Defendant Board on its motion
for summary judgment (except as to the issue of expert fees). As
to the issue of expert fees, judgment will be entered in favor of
Plaintiff AT & T Wireless and against Defendant Board in the
amount of $3,700.00.