On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-621-00.
Before Judges King, Wecker and Winkelstein.
The opinion of the court was delivered by: King, P.J.A.D.
REVISED OPINION FROM JUNE 7, 2002
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal involves the proposed construction of a wireless communications tower or "monopole" on property owned by a volunteer fire department in a residential section of the Borough of Upper Saddle River (Borough). An application for use variances submitted by three wireless communications providers who wish to collocate on the monopole was denied by the Upper Saddle River Zoning Board of Adjustment (Board). A complaint in lieu of prerogative writs filed in the Law Division by the providers (appellants) was dismissed, based upon the trial judge's sua sponte ruling that a volunteer fire department lacks authority to enter into a commercial lease agreement.
On appeal, the providers argue that, as a private, not-for- profit corporation, a volunteer fire department has authority to lease its property pursuant to N.J.S.A. 15A:3-1(a)(5). Appellants also contend that, under the circumstances of this case, the "effective prohibition" provision of the Federal Telecommunications Act (TCA), 47 U.S.C.A. § 332(c)(7)(B)(i)(II), prevails over local zoning ordinances and requires that this application be granted. Finally, appellants allege that the Borough exhibited a lack of good faith and ask this court to impose an equitable "builder's remedy" which would require the Borough to make municipal property across the street from the fire station available for construction of a monopole.
Based upon our statutes and case law, a volunteer fire department may lease its real property to a commercial enterprise. The holding of the trial judge to the contrary is in error. Although the nearby municipal site would be a much better location for the monopole, there is no authority which would allow the court to order the Borough to enter into a lease with the wireless communications providers. We need not reach appellants' equitable remedy request.
The preemptive effect of the TCA's effective prohibition provision, however, is a difficult question which is unresolved in New Jersey. The few decisions which address the issue are somewhat inconsistent. Several federal circuit courts have recently addressed § 332(c)(7)(B)(i)(II); the analysis used in the Third Circuit is the most soundly reasoned and widely accepted. We conclude that the judgment of dismissal must be vacated and the Board's decision reversed. Denial of this application effectively prohibits the availability of personal wireless service in a substantial portion of the Borough. We reverse and order the Board to approve the variances requested by the wireless communications providers.
On September 30, 1998 plaintiffs Sprint Spectrum, L.P. (Sprint), New York SMSA Limited Partnership d/b/a Bell Atlantic Mobile (Bell Atlantic), and Omnipoint Communications, Inc. (Omnipoint) filed an application for variances from the provisions of the Zoning Ordinance of the Borough in order to construct a 155-foot high monopole on property owned by the local volunteer fire department. The Board conducted public hearings on the application on fourteen occasions between December 17, 1998 and November 18, 1999. On December 16, 1999 the Board adopted a resolution denying plaintiffs' application in its entirety.
Plaintiffs filed a complaint in lieu of prerogative writs against the Board, the Borough, the Borough Council and the Mayor in the Superior Court, Law Division on January 24, 2000. The complaint alleged that the Board's action violated New Jersey's Municipal Land Use Law, N.J.S.A. 40:55D-1 to -136, and the TCA, 47 U.S.C.A. § 332(c)(7)(B); the Borough's refusal to make municipal property available for the monopole represented an illegal entry barrier; and the Borough's zoning ordinance contained illegal and invalid provisions. On May 8, 2000 plaintiffs filed an amended complaint which added a civil rights claim for money damages and counsel fees pursuant to 42 U.S.C.A. § 1983.
On October 11, 2000 the Borough amended portions of its zoning ordinance governing wireless telecommunications towers and antennas. By amending these selected sections, the Borough mooted most, if not all, of plaintiffs' arguments as to the legality of the ordinance.
At trial on November 30, 2000 no new evidence was introduced but the parties relied upon the record before the Board. The judge stated that she had not yet read the Board transcripts and she would let counsel know at a later date if a plenary hearing on technical questions was necessary.
On February 6, 2001 the judge issued an oral decision affirming the Board's denial of plaintiffs' application. The judge found that the volunteer fire department had no power to enter into a lease with plaintiffs. The judge also remarked that there was "not even a scintilla of evidence" to show that there was any interruption in the national telephone network in Upper Saddle River because the area was "fully covered by land lines." Sprint and Bell Atlantic filed a timely notice of appeal on April 5, 2001. Omnipoint did not appeal from the final judgment.
Plaintiffs are licensed by the Federal Communications Commission (FCC) to provide wireless communications services in the New York City metropolitan area, which includes eleven counties in northern New Jersey. Sprint and Omnipoint employ personal communications services (PCS) technology which uses high-frequency, digital transmissions to connect subscribers to the national telephone-switched network. Bell Atlantic utilizes both digital technology and the older analog system, which operates at lower frequencies, to provide customers with wireless telephone service.
Plaintiffs' FCC licenses require them to provide reliable service throughout their coverage area. In order to achieve this service, they must create a network of individual wireless communications facilities or "cell sites," which consist of radio antennae and related equipment that send and receive radio signals to and from subscribers' cellular phones. See generally Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 491 (2d Cir. 1999) (explaining how cellular coverage systems are designed). The cell sites are arranged in a honeycomb pattern, each bordering and slightly overlapping the next so that a traveling subscriber's signal is handed off from one site to another without interruption. See generally APT Pittsburgh Ltd. P'ship v. Penn Tp., 196 F.3d 469, 471 (3d Cir. 1999) (explaining how wireless telephone systems operate). Because the handsets operate at very low power levels and employ high frequency radio waves, cell sites must be placed at fairly close intervals ))
sometimes within a few miles of each other. Town of Oyster Bay, 166 F.3d at 491. Factors which influence the spacing of cell sites include the local topography, population density, and ground structures. See generally Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 635 (2d Cir. 1999) (explaining the technical requirements of cellular communications). If an area is not adequately covered by cell sites, communication can become impaired or unreliable. Ibid.
A good wireless signal essentially mimics a landline connection. If the signal degrades, an analog handset begins to produce scratches, pops and clicks, while a digital handset might lose syllables or suffer from an echo. If the signal becomes poor, an analog conversation will be exceptionally noisy and eventually may be dropped; a digital conversation will be lost abruptly without warning.
Cell sites can be placed on existing structures such as buildings, billboards and utility poles or on newly-erected communication towers. See Penn Tp., 196 F.3d at 472 (describing location of cell sites). When a new tower is built, it is typically a monopole )) a cylindrical structure usually eighty to 150-feet in height, made of galvanized, structural steel which tapers from a diameter of five or six feet at the base to about sixteen to eighteen inches at the top. On the monopole, antenna arrays are attached for each wireless communications provider located at the site.
Commonly, providers collocate their antennae in order to minimize the number of sites needed in a particular area. Coaxial cable connects the antennae with equipment at the base of the monopole, which transmits subscribers' calls via hardwire telephone lines to a main switching office where they are routed onto the national telephone network.
Plaintiffs here propose to construct a monopole on property owned by the Upper Saddle River Volunteer Fire Department. A fire department building, parking lot and one-car garage are currently located on the property, which is slightly under an acre in size. On top of the thirty-foot high firehouse is a twenty-foot guyed tower which holds the fire department's communications antenna. The lot and surrounding area is zoned R-1 residential. Across the street from the property is a municipal complex consisting of the Borough Hall, ambulance corps, police station and 100-foot-high police communications tower. Three schools border the lot, with athletic fields directly abutting the property on the west. To the south are a few single-family homes.
Plaintiffs want to construct a fenced compound, fifty-feet deep by forty-feet wide, at the rear of the fire department's property. The compound would be enclosed by a six-foot-high chain-linked fence surrounded by eight-foot-high blue spruce trees. Located within the compound would be the monopole, a Bell Atlantic equipment shelter, seven Sprint equipment cabinets on a concrete slab, and an Omnipoint equipment cabinet on a concrete slab. The monopole would be 155-feet high and consist of the Omnipoint antenna array at 120 feet; the Bell Atlantic antenna array at 130 feet; the Sprint antenna array at 140 feet; a lightning rod; and the fire department's antenna at the very top.
At the time of the application and hearings, the Borough's zoning ordinance specifically permitted antennae and towers located on municipal property. Although such an arrangement required approval by the Borough, it did not require formal review by the Board. Further, towers and antennae were designated as conditional uses in industrial and commercial zones. Cell sites were not permitted in residential zones. Accordingly, plaintiffs sought restricted use variances pursuant to N.J.S.A. 40:55D-70(d)(1). As proposed, the monopole would have a rear-yard setback of 57.2 feet, side-yard setbacks of 33.5 feet and 75.2 feet, and a front-yard setback of 342.3 feet. The rear and side-yard setbacks do not conform with the minimums established by the zoning ordinance. The monopole would be located about 187 feet from the corner of the nearest school building, 80 feet from the adjoining athletic field, 33.5 feet from the nearest private residence and 667 feet from the police communications tower. These distances do not conform with the minimum separation requirements in the zoning ordinance. In all, the Borough engineer found that construction of the monopole and its accessory equipment would require seventeen bulk variances.
At the Board hearings, each plaintiff presented testimony from a radio-frequency (RF) engineer: Paul Grunwald for Sprint; Christopher Olson for Omnipoint; and Thomas May for Bell Atlantic. The testimony of these experts was entirely consistent and corroborative. Most of the Borough is located in a deep river valley with steeply graded hills on either side. A third hill runs north-south through the Borough just west of the valley. With elevations of approximately 450 feet, these hills represent some of the highest terrain in the regional coverage area. It is apparent from the U.S. Geological Survey topographic map that the Borough lies within a bowl-shaped depression with very steep hills to the east and west and slightly lower, more gently sloping hills to the north and south.
The topography of the area presents unique challenges to providing reliable wireless communications service. The sections of the Borough zoned for industrial and commercial use lie along Route 17, which runs more-or-less parallel to the valley to the west of the intervening hills. Because radio frequencies in the ranges used by wireless communications do not bend or scatter, cell sites located along Route 17 cannot reach down into the valley to transmit or receive signals. Due to the line-of-sight nature of the higher radio frequencies, the intervening hills create "shadows" on the western slopes of the valley which are impervious to signals from the Route 17 antennae. In order to provide reliable wireless service inside the valley, a cell site must be located within the valley.
Each of the plaintiffs conducted a drive-test study of the Borough in order to demonstrate the gap in coverage that exists in the valley. In a drive-test study, a specially equipped vehicle travels the major highways in an area scanning signal strength through a specified frequency range.
Measurements are obtained by using a custom-designed cellular handset which transmits data to a computer which is connected to a GPS positioning system. The measurements are then processed by proprietary computer programs which combine them with local terrain data to produce a plot or "propagation study" of the radio-frequency coverage within the area.
Sprint's coverage map revealed that a small section of the Borough along Route 17 is covered by Sprint, but the main portion of the Borough within the valley is not. Omnipoint's study yielded a similar conclusion )) about 80% to 90% of the Borough is not covered by Omnipoint service. Bell Atlantic's plot revealed a large area within the center of the Borough where its coverage is not reliable.
Because of the better propagation obtained at analog radio frequencies, Bell Atlantic's coverage is somewhat better than that of Sprint and Omnipoint. However, the overall coverage level is still deficient. A subscriber traveling down the center of the valley would likely hear static in an analog call and probably end up dropping the call. A digital phone call would certainly be dropped. These conclusions are supported not only by Bell Atlantic's coverage plots but also by actual statistical data generated by existing cell sites which record the rate of dropped calls within an area.
Each RF engineer testified that a cell site at the proposed location would drastically improve wireless communications within the valley. This conclusion is the result of coverage plots obtained after a crane hoisted a portable transmitter to the height of the proposed monopole and drive-test studies were conducted on the strength of that signal.
All of the experts were asked why plaintiffs could not satisfy their needs by simply constructing a larger, more powerful antenna array on high ground outside the valley. Each explained that there are three basic reasons why this would not be possible. First, the steepness of the valley walls would still cause shadows on the downslopes away from the antenna. Second, a large antenna covering a great distance would interfere with other antennae in the system. Digital providers are each assigned a specific operating frequency and every base station in a provider's network transmits at exactly that frequency. A large site outside the valley would not only reach subscribers inside the valley but would also extend to all subscribers within its line-of-sight, causing static and cross- talk, and degrading the overall service. Interference is particularly troublesome to analog providers, where each call is carried on its own channel within the allotted frequency range. Because the number of available channels is limited, they must be used over and over again within the coverage area.
Third, cell sites have a limited capacity. With digital "CDMA" technology, all calls are carried on the same frequency simultaneously. The base station recognizes and differentiates calls by a mathematical prefix code transmitted by the handset. The more calls which come into the base station, the more difficult it is to recognize any individual call, until at some point the number of incoming calls exceeds the system's capacity. A helpful analogy is to imagine standing in a room where several people are talking at the same time. When only a few people are talking, you can differentiate each conversation by the tone of the speaker's voice. However, as the number of speakers increase, it becomes impossible to distinguish one conversation from another because the words become lost in the general background noise.
The monopole proposed by plaintiffs will have the capacity to carry 128 simultaneous phone calls per provider. This is well-suited to the coverage needs in the Borough. An antenna covering more territory would quickly become overwhelmed in an area like Bergen County which has a very large subscriber base.
The Board retained its own RF expert, Charles Hecht, to provide an independent technical analysis of plaintiffs' proposal. Hecht owns a broadcast telecommunications engineering consulting firm which practices before the FCC on technical matters such as antenna system design and propagation studies. He designed the first expanded band AM radio station in the United States and has written many articles on RF engineering. He currently serves as an RF consultant to several New Jersey municipalities.
After carefully reviewing the exhibits and testimony, Hecht concluded that acceptable wireless service is not present in the Borough. He said: "[T]here is not coverage that is substantially better than average for the applicant in the proposed service area . . . therefore a technical need exists for service." Hecht had a clear understanding of how the drive-tests were performed and how the coverage maps were prepared. Plaintiffs did not define good reception in any exotic or non- traditional manner, but rather used a signal strength which is accepted by many boards in New Jersey.
Board members questioned Hecht about whether he had seen the "raw data" that was used to prepare the coverage maps and asked him what additional information he needed to review in order to comment further on the conclusions of plaintiffs' experts. Hecht replied, "if it were a marginal situation, drive test data would conclusively answer the question in a positive or in a negative. Frankly, it really, coverage-wise, is not that marginal. However, I'm more than happy to review any drive test data. But it's not a marginal coverage situation."
One month later, Hecht testified that plaintiffs had provided him with additional information and, at his direction, had prepared specific maps showing gradations of signal strengths throughout the area. He examined the actual graphs of the drive-test data, which plotted the measured signal strength at specific locations in the Borough. Once again, Board members expressed alarm that Hecht had not looked at the "raw data." In response, Hecht explained that drive-testing is "an automated, computer automated process in which a device, for lack of a better word, makes hundreds of thousands of telephone calls and logs the relative success and quality of that call . . . into some sort of hard drive or storage device.
And then that output is just plotted." The computer programs used to process signal strength measurements operate objectively no matter who is using them. Unless the output has been deliberately altered by the field technicians, the resulting plot incorporates the reality in the field. Thus, he said, the data which the computer plotted was the actual "raw data" for the tests.
Board members persisted in questioning Hecht about why he did not obtain the "raw data." Hecht replied that to comply with the Board's request, he would have to somehow go inside the software program and copy the hundreds of thousands of bits of information stored there. Such a project would be very difficult, if not pragmatically impossible. He repeatedly insisted that it was impossible to get the information the Board was requesting.
Commenting on the technical information that he did review, Hecht stated that Omnipoint's existing service in the Borough is "little to none" and that there is a need for coverage. "Omnipoint's proposal to fill the coverage gaps, based on what I saw in reality, seems to be reasonable. It doesn't seem to be overkill. And it does seem to be sufficient to provide service to the area."
Bell Atlantic's signal levels are stronger than the other two providers, but still not adequate to provide consistent, quality calls. Its coverage is unreliable in over 50% of the Borough. Bell Atlantic's proposal to collocate on the monopole was not unduly burdensome and will close the gap in service in the area. Hecht could not make a general conclusion about Sprint's coverage because its ...