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New York SMSA Ltd v. Township of Mendham Zoning Board of Adjustment

January 29, 2004

NEW YORK SMSA LTD D/B/A BELL ATLANTIC MOBILE (NOW VERIZON WIRELESS); SMART SMR OF NEW YORK, INC. D/B/A NEXTEL COMMUNICATIONS, (NOW NEXTEL COMMUNICATIONS, INC.); SPRINT SPECTRUM L.P.; AND OMNIPOINT COMMUNICATIONS, INC. (NOW A WHOLLY OWNED SUBSIDIARY OF VOICESTREAM WIRELESS), PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF MENDHAM ZONING BOARD OF ADJUSTMENT, DEFENDANT-RESPONDENT, AND MAYOR AND COUNCIL OF THE TOWNSHIP OF MENDHAM AND THE TOWNSHIP OF MENDHAM, DEFENDANTS, AND FRANCIS WOOD AND DAVID HINCKLEY, DEFENDANTS/INTERVENORS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket Number MRS-L-2628-01.

Before Judges Pressler, Ciancia and Parker.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 21, 2003

Plaintiffs, members of a partnership of wireless communications service providers,*fn1 appeal from a Law Division judgment affirming the denial of their application for zoning variances to construct a 148-foot wireless communications tower on residential property in Mendham Township (Township). The variance application, which was filed jointly by plaintiffs and non-party AT&T Wireless, is unusual in that all five wireless communications service providers operating in northern New Jersey collaborated in the single site proposal. Following thirty-one hearings over the course of three years, the Township of Mendham Zoning Board of Adjustment (Board) found that the proposed tower was not particularly suited to the site and that its negative impact on aesthetics and property values would be detrimental to the public good.

The issue before us is whether the Board's action violated the Federal Telecommunications Act (TCA), 47 U.S.C.A. § 332(c) (7)(B)(i)(II), which limits the authority of local zoning boards to render decisions that effectively prohibit wireless communications services. We conclude that it did and we reverse.

I.

The application process began on March 27, 1998, when the five wireless communications providers jointly filed an application for use and bulk variances to construct the tower at a site near Route 24 and Conifer Drive. On May 10, 2001, the Board voted unanimously to deny the variance and memorialized the decision in a resolution adopted on July 12, 2001.

On August 28, 2001, plaintiffs filed an action in lieu of prerogative writs in the Superior Court, Law Division, alleging that the Board's decision was not based upon substantial evidence, was contrary to established principles of state municipal land use law and violated the TCA. Plaintiffs further sought to have the Township's wireless ordinance declared null and void on the ground that it violated state and federal anti trust law.

The matter was tried on March 14, 2002, and the trial judge rendered an oral decision on March 27, 2002.*fn2 Final judgment was entered on April 7, 2002, declaring the Township's wireless ordinance to be invalid*fn3 but upholding the Board's resolution. The trial judge nevertheless allowed plaintiffs to make an application to re-open the matter"[i]n the event all or... a substantial number of the plaintiffs in this matter are unable to workout [sic] or resolve the telecommunications issues presented in this case, within one year."

Plaintiffs are all licensed by the Federal Communications Commission (FCC) to provide wireless communication services in northern New Jersey.*fn4 Even though they have different operating characteristics and technical needs, they all provide essentially the same cell phone service to their customers. In order to do so, each carrier must construct and maintain a system of overlapping"cell sites" throughout its coverage area. See generally, Sprint Spectrum, L.P. v. Bor. of Upper Saddle River Zoning Bd. of Adjustment, 352 N.J. Super. 575, 581-82 (2002) (describing the design of wireless communications systems); Stephanie E. Niehaus, Bridging the (Significant) Gap: To What Extent Does the Telecommunications Act of 1996 Contemplate Seamless Service?, 77 Notre Dame L. Rev. 641 (2002) (explaining the technical aspects of wireless communications services). The goal of each carrier is to provide its customers with readily available, landline-quality cell service.

Mendham Township is a rural community, approximately twenty-one square miles in area, located along Route 24 in Morris County. It enjoys rolling, wooded topography and two historic districts listed on the National Register. With the exception of a very small commercial zone in one of the historic areas, the entire Township is zoned for residential use. Of the approximately 13,440 acres of land in the Township, only four are zoned for non-residential use.

In July 1998, the Township adopted a zoning ordinance to regulate the siting of wireless communications facilities. The ordinance permitted telecommunications towers and antennas only as conditional uses on municipally owned property or on property owned by a public utility company and mandated tower users to co-locate their antennas wherever technically, practically and economically feasible. The ordinance was intended to protect residential areas from the potentially adverse impacts of cell towers, minimize the total number of towers throughout the community, and require cell towers to be located on non residential property.

After extensive research and testing, the carriers selected the Conifer Drive site as a suitable location for the cell tower and applied for the necessary variances. They intended to make the monopole available to the Township at no cost for the location of emergency services communications equipment.

In applying for site plan approval and variances from local zoning ordinances, wireless communication carriers operating under the TCA must demonstrate that (1) there is an existing, significant gap in service within the municipality; (2) their proposal will fill the gap in the least intrusive manner; (3) they have made good faith efforts to investigate alternate technologies and alternate sites which may be less intrusive in the community; and (4) the area is not already being served by another wireless provider. Sprint Spectrum, L.P., supra, 352 N.J. Super. at 604, 609-10. Plaintiffs established each of the Sprint Spectrum criteria.

A. Gaps In Service Within The Township

Ilias Zervos testified as an expert in radio frequency engineering on behalf of Bell Atlantic. He identified active cell sites in the vicinity, noting the Bell Tower site in Mendham Borough (Mendham 1), the Headquarters Plaza site in Morristown, and a temporary site located on a building in Lewis Morris County Park (300 Mendham Road).

Zervos explained that he evaluated Bell Atlantic's existing level of coverage by conducting drive tests in the Township. In a drive test, a specially equipped vehicle travels throughout an area scanning and recording signal strengths over a given frequency range. The data obtained from the drive test is then processed by a computer and plotted in the form of a propagation map. The propagation map showed several gaps in Bell Atlantic's coverage in the eastern portion of the Township. The weakest coverage lay in a roughly circular area approximately four miles in diameter along Route 24. Another coverage gap was identified along Main Street in the Brookside section of the township.

Sean Coakley, a radio frequency engineer from AT&T Wireless, testified that his company needed additional coverage in the Township. He introduced propagation maps, verified by drive test data, showing a gap in AT&T's coverage along the Route 24 corridor between Mendham Borough and Morristown.

Paul Grunwald, Sprint's radio frequency engineer, testified that Sprint's location at Mendham 1 did not provide adequate service for the entire Township. His propagation map showed a one-mile gap in Sprint's coverage along Route 24.

Christopher Olson, Omnipoint's expert, testified that Omnipoint did not have the same level of coverage as the other carriers because it was a new company in the early phase of its build-out. Much of Olson's testimony concerned Omnipoint's planned facilities and projected coverage levels.

J. Christopher Fagas testified as Nextel's radio frequency engineer. He presented a propagation map showing a three-mile gap in service straddling Route 24 between Mendham Borough and Morristown.

Robert W. Willis was the Board's radio frequency engineering expert during most of the hearings. He reviewed the carriers' propagation studies, did independent drive tests and concluded that the carriers were basically correct in their identification of coverage gaps. He agreed that there was a particular problem along Route 24 east of the border with Mendham Borough and along Main Street in Brookside. He verified that there were some spots within these areas where a non-moving user could make a call, but the signals were very weak and the tone quality was poor.

Willis resigned as the Board's expert on November 9, 2000, because of a conflict of interest. The Board then retained Clarence M. Beverage as its radio frequency engineering expert. After reviewing testimony from previous hearings and examining the carriers' propagation maps, Beverage conducted his own study based entirely upon computer propagation models. Beverage concurred with all of the other experts as to the gaps in service. In fact, Beverage's computer model predicted even poorer coverage along Route 24 than that reported by the carriers.

B. Site Selection

The proposed site for the cell tower was located at the top of a 580-foot knoll near the center of the Route 24 coverage gap, on a 10.23 acre, privately owned lot, 255 feet wide by 1760 feet deep, in a sparsely populated R-1 zone. The property, which is heavily wooded and improved with a single-family residence, fronts on Route 24, but has ingress and egress through a gravel driveway connecting to Conifer Drive. Lower elevation residential lots surround the property.

The facility, as originally proposed, consisted of a 140-foot galvanized steel monopole holding five antenna arrays, topped with an eight-foot lightning rod. Unstaffed equipment shelters and cabinets would be installed at the base of the pole and connected to existing underground electric and telephone lines. The facility, covering 6,700 square feet, would be surrounded by an eight-foot chain-link fence. Two dry wells would be constructed on the site to prevent an increase in runoff and the gravel driveway from Conifer Drive would be widened from twelve to twenty-four feet.

In response to comments from members of the public, the carriers revised the site plan changing the monopole to a 140-foot"tree" designed to resemble a white pine, with branches extending down beneath the existing tree cover; placing all equipment shelters and cabinets in a single building made to look like a barn; reducing the size of the facility to 4,600 square feet; surrounding it with an eight-foot board-on-board fence; and reducing the driveway to twenty feet with forty-three ten-foot evergreens planted along the edges for screening.

The facility was to be located sixty-eight feet from the east property line, eighty-five feet from the west property line, 1030 feet from the south property line, 600 feet from the north property line, and seventy-five feet from the property owner's residence. The nearest neighboring residence would be 135 feet from the fence and 200 feet from the monopole. Because the distances to the east and west property lines did not satisfy the minimum set back requirements under the ordinance, plaintiffs applied for bulk ...


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