United States District Court, D. New Jersey
SPRINT SPECTRUM L.P. and T-MOBILE NORTHEAST LLC (f/k/a OMNIPOINT COMMUNICATIONS, INC.), Plaintiffs,
THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS, NEW JERSEY, Defendant
For SPRINT SPECTRUM L.P., Plaintiff: REGINALD JENKINS, JR., LEAD ATTORNEY, PRICE, MEESE, SHULMAN, & D'ARMINIO, P.C., WOODCLIFF LAKE, NJ.
For T-MOBILE NORTHEAST LLC, formerly known as OMIPOINT COMMUNICATIONS, INC., A Wholly Owned Subsidiary of T-Mobile USA, Inc., Plaintiff: REGINALD JENKINS, JR., LEAD ATTORNEY, PRICE, MEESE, SHULMAN, & D'ARMINIO, P.C., WOODCLIFF LAKE, NJ; CLAIRE J. EVANS, WILEY REIN LLP, WASHINGTON, DC.
For THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS, NEW JERSEY, Defendant: JUSTIN DANIEL SANTAGATA, LEAD ATTORNEY, KAUFMAN SEMERARO & LEIBMAN, LLP, FORT LEE, NJ.
FINDINGS OF FACT & CONCLUSIONS OF LAW
Hon. Kevin McNulty, United States District Judge.
This case requires the Court to evaluate the decision by the Zoning Board of Adjustment
of the Borough of Paramus (" Defendant" or " Board" ) to deny the applications of Sprint Spectrum L.P. and T-Mobile Northeast LLC (collectively " Plaintiffs" or " Carriers" ) to construct a wireless communications facility. Plaintiffs filed this action for declaratory and injunctive relief against the Board for violations of the Telecommunications Act of 1996 (" TCA" ) and the New Jersey Municipal Land Use Law (" MLUL" ).
The Carriers have two essential claims. First, they contend that the Board's denial is an effective prohibition of service in violation of the TCA, 47 U.S.C. § 332(c)(7)(B)(i)(II). The Board, they say, denied an application to fill a significant gap in wireless service despite the lack of any feasible, available, less-intrusive means to fill the coverage gap. That claim is a federal-law cause of action as to which this Court may take independent evidence, in addition to reviewing the record already compiled. Second, the Carriers contend that the Board's denial was not supported by substantial evidence, under the TCA, 47 U.S.C. § 332(c)(7)(B)(iii), and the MLUL, N.J. Stat. Ann. 40:55D-1 et seq. A decision on that second claim is based on this Court's review of the record that was compiled before the Zoning Board.
I am the third judge to whom this case has been assigned. This opinion must be read in conjunction with a prior partially dispositive ruling in the case, the summary judgment opinion of Judge Linares (DE 40), as well as other rulings by Judge Salas. I have built upon their work, and tried not to duplicate it. I broadly agree with those prior rulings, treated them as constituting the law of the case, and proceeded to resolve the issues that remain outstanding.
On April 30, 2013, and May 1, 2013, I held a bench trial to resolve disputed issues. The witnesses for both sides were offered as experts. By stipulation I accepted their reports or affidavits in lieu of direct testimony. In court, the opposing party was permitted to conduct cross-examination, and redirect examination was permitted as appropriate.
" [I]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon...." Fed.R.Civ.P. 52(a). This constitutes the Court's findings of fact and conclusions of law. I find that the Board's denial effectively prohibits wireless service, that it was not supported by substantial evidence, and that it therefore violates the TCA and MLUL.
I. FINDINGS OF FACT
A. Parties and Jurisdiction
1. Plaintiff Sprint Spectrum L.P. is a Delaware limited partnership with a principal place of business at 6200 Sprint Parkway, Overland Park, Kansas. (Complaint, DE 1, ¶ 10).
2. Plaintiff T-Mobile Northeast LLC is a Delaware limited liability company and is the successor-in-interest to Omnipoint Communications, Inc. Both T-Mobile Northeast LLC and Omnipoint Communications, Inc., are wholly-owned subsidiaries of T-Mobile, USA, Inc., a Delaware corporation with its principal place of business in Bellevue, Washington. (Complaint ¶ 11).
3. Defendant Zoning Board of Adjustment of the Borough of Paramus, New Jersey, is a duly authorized zoning board of adjustment pursuant to N.J.S.A. 40:55D-69. As such, it is delegated the authority to, among other things, grant site plan approval and variance relief for wireless telecommunications facilities in Paramus. (Answer, DE 5, ¶ 12).
4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that " the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
5. This Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs' state law claim, which forms part of the same case or controversy as Plaintiffs' federal claims.
B. Zoning Board Proceedings
6. Plaintiffs, the Carriers, are the proposed lessees of two properties located within the Borough of Paramus, New Jersey. One, the " Ambulance Corps" site, is located at 295 East Midland Avenue. The other, the " Church of the Nazarene" site, is located at 285 East Midland Avenue. Plaintiffs have sought approval to construct a wireless telecommunications facility at either of those sites in order to fill significant gaps in their wireless coverage. (Def. SMF, DE 60, ¶ 38).
7. In December 2004, Sprint filed its application for zoning approval to construct a 125-foot faux-tree wireless communications facility, known as a " monopole," at the Ambulance Corps site. Paramus subsequently enacted a new telecommunications ordinance. The ordinance, among other things, specifically prohibited cellular monopoles (defined as " [a]n antenna structure consisting of a single pole" ) in commercial and residential zones. (Karlebach Dep. at 8:1-4, 42:16-21). T-Mobile's predecessor in interest, Omnipoint Communications, was added to that application in August 2008. The Ambulance Corps site is located in an R-100 residential zone. It is bordered by a Jewish Community Center, the Church of the Nazarene, and four residences. (Linares Opinion, DE 40, at 2).
8. In November 2007, to provide another option, Sprint and T-Mobile's predecessor in interest, Omnipoint Communications, filed a joint application for zoning variances and approval to construct a 120-foot faux-tree wireless communications
facility at the Church of the Nazarene site. That site, too, is located in an R-100 residential zone. It is bordered by the Paramus Volunteer Ambulance Corps, a commercial strip, and two residences. (Linares Opinion at 2-3).
9. Each application requested variances pursuant to N.J.S.A. 40:55D-70(d) with respect to (a) permitted use, because telecommunications facilities are specifically prohibited in residential zones, and (b) maximum building height, because 32 feet is the maximum height permitted. Both applications further requested variances pursuant N.J.S.A. 40:55D-70(c) with respect to (a) lighting, (b) minimum front/rear setback, (c) minimum setback from a residential zone, and (d) minimum setback from property line for an equipment building. (Linares Opinion at 3).
10. Between May 26, 2005, and June 25, 2009, the Board held seventeen public hearings on the Carriers' applications. At these meetings, the Board heard testimony from counsel and various experts. It heard questions and concerns raised by the public. (Linares Opinion at 3-4). One of the issues raised was whether there was a feasible alternative to the monopole.
11. In May 2006, Rhoan Gordon, a radio frequency engineer and the Carriers' expert before the Zoning Board, was asked whether affixing antennae to multiple shorter structures, such as lamp poles, would be a feasible alternative to the requested monopole. He responded:
Then you need a dozen of them or 15 of them to cover the entire thing at 25 feet . . . That's equivalent to the lamp pole, maybe 30 feet. You need a dozen to cover this gap. . . . That is not a feasible design even if we were to hang them on light bulbs [ sic ], you need a huge box with each antennae system where would you put it on the ground, hang it off the light pole and you have this huge cabinet or box of some sort hanging on your light pole and there would be a lot of them, in order to provide the coverage for all of the gap, or a large portion of the gap. . . . You need additional height for this facility.
(Linares Opinion at 6; Def. SMF ¶ 39).
12. Over two years later, in July 2008, a member of the public inquired as to whether a Distributed Antenna System (" DAS" ) had been considered as an alternative to the proposed monopole. DAS is a means of providing wireless coverage without the use of tall monopoles. A monopole concentrates all wireless antennas onto a single tower, as the name suggests; a DAS, however, " distributes" those antennas across utility poles and other existing structures throughout the coverage area. (Linares Opinion at 6). The expert retained by the Board, Ross Sorci, a radio frequency engineer with twenty-nine years of relevant experience analyzing coverage and propagation issues, answered that, for a DAS, " [y]ou'd have to run the -- you'd have to have numerous antennas running up and down the road to get the same service that we could from a single structure." Mr. Sorci further testified that " DAS systems typically aren't used in this type of application, they are more of a, you know, spot solution, if you will, a parking garage, an auditorium, things of that nature." According to Mr. Sorci, a DAS is " generally not very applicable to covering a large area like what we're talking about here." (Linares Opinion at 6; Pl. SMF ¶ ¶ 11.c, 14.a).
13. In November 2008, Paramus hired a public advocate, Patrick Papalia, who retained and offered David Maxson as an expert in " wireless consulting and communications." Mr. Maxson described himself as a " municipal wireless consultant" with " experience in evaluating, observing and providing consulting services with regard
to DAS systems and other types of wireless service systems." Mr. Maxson testified that he does not hold a degree in engineering and that he has " no formal training with respect to the placement, construction or modification of personal wireless facilities." He testified that he is not a licensed professional engineer in New Jersey, has no educational experience in land use planning, is not a certified urban planner, is not a certified municipal engineer in New Jersey, and has taken just one non-graded course via CD-ROM on cellular CDMA technology. He testified that he has, however, served as a consultant to municipalities for over 20 years and has advised wireless carriers regarding both DAS and monopole technology, and that he is a " senior member of the Institute of Electrical and Electronics Engineers" and a " certified engineer with the Society of Broadcast Engineers." The Board permitted Mr. Maxson to testify over the Carriers' objection. (Linares Opinion at 6-7; Pl. SMF ¶ ¶ 11.d, 11.e).
14. Before testifying at the Board hearing, Mr. Maxson prepared a report in order to " raise questions that have not been addressed by the respective parties in the application proceedings," including DAS. Mr. Maxson wrote that " [i]t must be understood that my review is incomplete without seeing the other materials that were referred to in the transcripts." He further wrote that a DAS is an " alternative that deserves careful consideration" depending on " [w]hat local zoning regulation," or " other local or state regulatory controls," if any, " appl[y] to the use of the utility distribution infrastructure in Paramus" because " [t]hese are important questions [that] speak directly to the availability of the utility distribution infrastructure as an alternative to the proposed tower facility." (Pl. SMF ¶ 14.c).
15. Mr. Maxson testified that he had " enough information" to " come up with an alternate approach. . . . A distributed antenna system." Mr. Maxson testified that he had " review[ed] the lay of the land" by looking " on Google," where " you can see that the streets are well populated with utility poles and the density of development is pretty substantial." He also " did some looking into the various addresses that were listed on the transcripts just to view Web sites, perhaps, see if I could see photographs of the buildings on these different parcels, for instance, a church parcel." And he " toured the region" the afternoon of the zoning board hearing. He did not review the drive test data that was performed by the Carriers or the coverage maps produced before the Board, did not conduct any drive tests in the area, and did not " even drive through the area" until the afternoon of the hearing, and that he did not conduct any inspection of the structural integrity of utility poles in the area to determine whether they would be structurally suitable to hold the antennas and the wires and the cabinets. (Pl. SMF ¶ ¶ 14.d, 14.e).
16. Mr. Maxson testified that that the streets of Paramus are " well populated with utility poles and the density of development is pretty substantial." He continued:
So the simple observation from someone who has seen numerous DAS facilities, I've done coverage analysis of DAS antenna nodes, both on computer and in the field, is that as long as you have utility poles going through the neighborhoods, you have an opportunity to provide a coverage footprint wherever you need it. And, in fact, the testimony of Mr. Gordon early in the process was that it would take about 12, perhaps 15,
30-foot high antennas to fill what they call the gap.
(Linares Opinion at 7).
17. Mr. Maxson agreed with Mr. Gordon that " with a DAS architecture using lower height antennas, you'd have to have numerous antennas up and down the road to get the same service that we could get from a single structure.'" According to Mr. Maxson, " the use of numerous antennas on utility poles is a requirement for a DAS solution." (Linares Opinion at 7-8).
18. In response to a question about how the Carriers would deal with an extended outage that could severely effect DAS service, Mr. Maxson testified that the Carriers could solve the problem if they " bring a small Honda generator -- I say Honda because they're popular because they're fairly small-packaged -- set it on the street, chain it to the utility pole and plug it in for the duration of the power outage." (Pl. SMF ¶ 14.g). Mr. Maxson also testified that a properly-designed DAS could locate an ...