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Nextel of New York, Inc. v. Borough of Englewood Cliffs Board of Adjustment

June 03, 2003

NEXTEL OF NEW YORK, INC. D/B/A NEXTEL COMMUNICATIONS, PLAINTIFF-APPELLANT,
v.
BOROUGH OF ENGLEWOOD CLIFFS BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND MAYOR AND COUNCIL OF THE BOROUGH OF ENGLEWOOD CLIFFS, AND THE BOROUGH OF ENGLEWOOD CLIFFS, DEFENDANTS.



Before Judges Petrella, Lintner and Parker. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-39-02.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2003

Plaintiff, Nextel of New York, Inc. d/b/a Nextel Communications, appeals from a Final Order of the Law Division finding that the Board of Adjustment of the Borough of Englewood Cliffs' (the Board) denial of plaintiff's application to place telecommunications antennas on two buildings in Englewood Cliffs did not violate the Telecommunications Act of 1996 (TCA), 47 U.S.C.A. § 332, and was not arbitrary, capricious, or unreasonable. We affirm.

The procedural history and relevant facts are as follows. Plaintiff is licensed by the FCC to provide wireless telecommunications coverage. The company provides both cellular and two-way walkie-talkie services within the area of its network. In September 2000, plaintiff applied to the Board for a use variance and site plan approval to install wireless communications facilities on two buildings in Englewood Cliffs, one located at 600 Sylvan Avenue and the other at 301 Sylvan Avenue. At the 600 Sylvan Avenue site, plaintiff would also construct a 10-foot by 20-foot equipment shelter. At the 301 Sylvan Avenue site, the equipment was to be located within the existing building. Both buildings are surrounded by parking.

600 Sylvan Avenue is a four-story office building that measures 45 feet tall to its roof line. Its roof has an existing 12-foot-high equipment penthouse for Omnipoint's wireless communications and an HVAC cooling tower that rises 57 feet above ground level. The proposed antennas would rise to 51 feet above ground level.

301 Sylvan Avenue is a two-and-a-half story office building. The rooftop at 301 Sylvan Avenue holds existing antennas and equipment owned by AT&T Wireless and Verizon,*fn1 which had been placed there apparently without the permission of municipal officials. 301 Sylvan Avenue measures 27 feet to the top of its roof line, with the existing equipment bringing the height to 37 feet. The proposed antennas would rise to only 31 feet. The maximum building height in the zone is 35 feet.

In response to the requirements of Section 704(a) of the TCA, 47 U.S.C.A. § 332(c)(7), the Borough enacted Ordinance 9909"To Permit and Regulate Wireless Communications Towers and Antennas." The ordinance permitted towers only on Lots 4 and 5 in Block 513 and Lot 3 in Block 412.*fn2 Towers and antennas were prohibited at all other sites in the Borough. The Ordinance set forth height,*fn3 setback, and lot coverage requirements; standards for landscaping and equipment cabinets; and procedures for construction applications. The designated lots were rezoned from B-4 and B-2 to a newly created"public zone," P-1. Permitted uses in the public zone were police stations, firehouses, libraries, municipal buildings and other public and governmental uses, accessory parking areas and buildings, and wireless communications towers as accessory or principal uses. Public parks and public recreation areas were conditional uses in the zone.

As to pre-existing towers and antennas, the ordinance provided:"Pre-existing towers and pre-existing antennas are not required to meet the requirements of this ordinance other than the requirements of Section 4(d) [state and federal requirements for towers], absent any enlargement or structural modification of the addition of any structures.""Pre-existing Towers and Pre-existing Antennas" were defined as:"Any tower or antenna for which a building permit has been properly issued prior to the effective date of this ordinance, including permitted towers that have not yet been constructed so long as such approval is current and not expired."

The ordinance provided that its purpose was to establish general guidelines for the siting of wireless communication towers and antennas. The goals of this ordinance are to: (1) protect residential areas and land uses from potential adverse impacts of towers and antennas; (2) encourage the location of towers in nonresidential areas; (3) minimize the total number of towers throughout the community; (4) strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; (5) encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; (6) encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques; (7) enhance the ability of the providers of telecommunications services to provide such services to the-community quickly, effectively, and efficiently; (8) consider the public health and safety of communications towers; and (9) avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, the Borough of Englewood Cliffs shall give due consideration to the Borough of Englewood Cliffs' master plan, zoning map, existing land uses, and environmentally sensitive areas in approving sites for the locations of towers and antennas.

Ronald Peterson, an expert regarding electromagnetic fields, testified on plaintiff's behalf that proposed radio frequency emissions at both sites complied with FCC standards. Naimat Mughal, a senior radio frequency engineer employed by plaintiff, testified as both a fact witness and as an expert in the field of radio frequency engineering. According to Mughal, plaintiff sought to install the antennas to eliminate a"gap" in service to its customers."Gaps" created the possibility that a mobile call would be dropped as it was handed over from one site to the next. Mughal's testimony regarding its parameters focused on two"overlays" that were submitted into evidence.*fn4 The Borough's existing coverage was being provided by two sites in Fort Lee.

Much of Mughal's testimony was provided in response to the Board's efforts to understand why the antennas could not be placed on a tower located on municipal property in the area zoned for communications facilities. The municipal tower is located six blocks from 301 Sylvan Avenue. Mughal testified that an antenna placed at the 130-foot level on the municipal tower, rather than at the two proposed locations, would provide"identical" coverage to the north, and"a little bit more" coverage to the south. However, he also testified that an antenna located at this height would create interference with plaintiff's antennas at other sites because the signals emitted would be too strong and would not"die off" as necessary. According to Mughal, plaintiff's system required that its different sites be able to"reuse" frequencies when a signal had died off, and a strong signal would not allow plaintiff's other sites to reuse the signal because the signal would not be dissipated by buildings and the tree line. Moreover, Mughal opined that if the antennas were installed at a lower level on the municipal tower, for example 65 feet, the signal would be insufficient to eliminate the gap to the south, and plaintiff would still be required to use the two proposed sites at 301 Sylvan Avenue and 600 Sylvan Avenue.

Mughal had no report or evidence to support his conclusion, nor did he provide any specific test data or perform an analysis; he essentially based his opinion on his"experience." Although he testified that he expected plaintiff would achieve sufficient coverage with the two proposed sites, such that it would not require additional antenna locations in the Borough, he acknowledged that plaintiff's system was evolving and that it was dismantling sectors at some of its higher sites because of reuse problems. He also had no written report evidencing his analysis concerning the non-viability of the municipal site due to interference. Further, his testimony respecting interference was somewhat confusing and inconsistent. At one point he testified that plaintiff's sites in the Bronx do not interact with sites west of the Hudson river, while at another point he indicated that use of the 130-foot monopole belonging to the Borough would cause interference with plaintiff's operation in the Bronx. He acknowledged that he had done no written analysis of whether the municipal site could be viable if plaintiff adjusted the transmission from its other sites. In response to requests, he indicated that he would submit a written analysis concerning interference based upon his computer data.

Janice Talley, a licensed professional planner, testified on plaintiff's behalf that the application should be granted because the proposal would advance the purposes of the Borough's ordinance and could be granted without substantial detriment. Talley opined that the site was suitable because it was not located in a residential zone; it was surrounded by office buildings, commercial properties, and parking lots; 600 Sylvan Avenue was shielded by a large number of trees; and the buildings had existing antennas such that the additional antennas would have very little visual impact. She conceded that her testimony was based on the assumption that plaintiff would be unable to provide coverage if it could not locate its antennas at the selected sites.

Malcolm Kasler, a planning consultant retained by the Board, testified as a planning expert. He indicated that, according to plaintiff's application, 600 Sylvan Avenue required three"d" variances: a use variance under N.J.S.A. 40:55D-70d(1); a variance for expansion of a nonconforming use under N.J.S.A. 40:55D-70d(2), based on the fact that the building had an existing telecommunications facility on the roof; and a height variance under N.J.S.A. 40:55D-70d(6). Kasler testified that the building itself did not conform to a number of bulk regulations for the B-2 zone, including setback and rear yard requirements, but that plaintiff's application would not exacerbate the nature of those existing non-conformities. He was of the opinion that the addition of the equipment shelter increased the number of stories and required a variance under N.J.S.A. 40:55D-70(c). He did not mention that the roof at 600 Sylvan Avenue already held an equipment penthouse or explain why the proposed shelter would constitute an additional story above the existing penthouse.

Kasler designated the existing telecommunications facilities as"nonconforming" and stated the following as the basis of his opinion:

You will recall there was some question raised as to how these facilities were located there. Nobody knew so we don't know whether they were placed there legally or in some other fashion but by adding additional antennas onto the roof, this also would require a D-2 variance which is an expansion of a non conforming use.

Kasler concluded that the applicant had not met the positive criteria for a variance. According to Kasler, the proposal was inconsistent with the land use element of the master plan respecting wireless communications facilities and the purpose of the ordinance because (1) the 600 Sylvan Avenue location was"considerably less" than 500 feet from residences located to its west; (2) the application did not minimize the total number of towers and antennas in the community because the proper antennas were not sited at the location that the municipality had designated for such purposes; and (3) the application did not encourage joint use of a site by multiple carriers because the existing facility represents nonconforming uses that were believed to have been put up illegally. He stated that there was"no definition [sic] that shows these facilities were done under a permit."

The township engineer, Andrew Hipolit, reviewed plaintiff's submission entitled"Interference Report Concerning Nextel's Use of Municipal Tower Site," submitted in response to the Board's concerns expressed during Mughal's testimony. Hipolit testified that the report did not answer the questions because it merely discussed interference with the two proposed sites, rather than showing whether other surrounding sites could be adjusted so that the antennas could be located on the municipal site without the interference problem. Hipolit was concerned with the report's indication that the issue was one of"trial and error."

During the hearings, the township's attorney announced that several Board members had recently obtained plaintiff's service and were aware that its website indicated"that there is complete coverage for the entire East Bergen area." Plaintiff's attorney dismissed the claim essentially as sales puffery saying: "[T]hat is nice and you got our sales brochures that say we got [sic] great coverage. You will get that from all the carriers when selling a service. They're going to tell you how great it is."

At its October 15, 2001 meeting the Board unanimously rejected plaintiff's application. The Board members' comments concentrated on Mughal's testimony and their feelings that Mughal never fully explained why plaintiff was unable to use the municipal tower or why the antennas at the proposed sites were necessary.

On November 12, 2001, the Board issued two resolutions, one for each site. The resolutions were substantially similar. The Board stated that, with respect to 600 Sylvan Avenue, it considered the application"as a D variance, a use variance and height variance, along with variances to continue to increase prior nonconformity with rear, side and total side yard distances and with coverage requirements." As to 301 Sylvan Avenue, it considered the application"as a D variance" and"a use variance." In each resolution, the Board rejected plaintiff's contention that the antennas were necessary for plaintiff to ensure coverage in the surrounding area. It

found that Peterson's and Mughal's testimony and the exhibits"demonstrate[d] that coverage for the Englewood Cliffs [area] and the surrounding area for Nextel are completely covered at the present time and that the implementation of additional antennas on [each building] is merely'a tweaking' desired by Nextel engineers but not necessary."

The Board found Mughal's testimony"not convincing,""conflicting," and"sometimes not believable." The resolution recited that Mughal's testimony that the antennas placed at both proposed sites are necessary to"ensure coverage of Englewood Cliffs and the surrounding areas and that the applicant could not use the Town site because of frequency gaps and interruptions and pass offs" was in conflict with his other testimony respecting present coverage, the use of the municipal tower at various heights, plaintiff's constant changes in order to make old sites compatible with new ones, and the fact that the sites in Fort Lee were changing but Mughal would not know the effect on the proposed sites until the changes were made. The materials prepared by plaintiff for its Internet site and for public use that stated"there is sufficient coverage in ...


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