Posted by: Patricia Salkin | January 25, 2013

Fed. Dist. Court in NJ Finds Borough’s Denial of Variances for Wireless Facilities Violates the TCA

In order for its signal to reach customers, T-Mobile built cell sites in various locations to maximize wireless service. Due to a significant gap in coverage in the Borough of Leonia, T-Mobile applied for a use variance in order to place an antenna and other equipment on the roof of an apartment building. This building, located in the “B Multi-Family Dwelling” zone, also happens to be the tallest in Leonia. The proposed plan was to fix eight antennas to the exterior of the building and install three equipment cabinets in the building’s courtyard. The use variance was needed because the building is in the multi-family zone and the height of the proposed plan would exceed that allowed by the zoning ordinance.

Several years before this, T-Mobile’s competitor, Sprint, was initially denied the ability to place antennas and other facilities on this same building, but after seeking judicial review it was allowed to. At the time of the case Sprint had antennas and other facilities installed on the building in the same manner as T-Mobile proposed. Furthermore, Sprint’s wireless equipment extended higher above the roofline than T-Mobile’s proposed facilities would. At the Board’s request to search for alternative sites, T-Mobile conducted an investigation but found no other reasonable alternatives. In the end, the Board denied T-Mobile’s application, claiming it would constitute a nonconforming commercial use in a residential zone, the antennas placed on the exterior of the building would result in encroachments into the required setbacks, and the height of the antennas would exceed the maximum height allowed by the zoning ordinance. Additionally, using its own expert and ignoring investigation and expert testimony by Plaintiff, the Board found that T-Mobile gap in coverage would not be totally remedied by placing the facilities on that building, and suggested that other locations would be better suited to fill the gap.

Plaintiff’s argument was threefold: “1) the Board’s decision unreasonably discriminated against the Plaintiff under the Telecommunication Act of 1996 (the “TCA”); 2) the Board’s denial of Plaintiff’s application has the effect of prohibiting wireless service, in violation of the TCA; and 3) the Board’s denial is not supported by substantial evidence in the record.” First, under the TCA, state or local governments are prohibited from discriminating among providers of wireless services that are functional equivalents of each other. That being said, the TCA does not prohibit all forms of discrimination, just unreasonable discrimination that creates an unfair market advantage. This occurs most notably when a municipality permits one provider to locate in a particular area to the exclusion of other providers. Applied to the present situation, Plaintiff’s expert testified that the proposed facilities would be similarly situated to Sprint’s, installed in the same manner and even being shorter than Sprint’s pre-existing facilities. The fact that Sprint had near-identical pre-existing facilities on the same building supported the court’s conclusion that Plaintiff satisfied the definition of unreasonable discrimination under the TCA.

Second, the court shifted its discussion to determining whether the Board’s decision prohibited Plaintiff from providing service in violation of the TCA. To help guide its analysis, the court relied on the Third Circuit’s two-part test for determining if a denial of a wireless service application rises to the level up unlawful prohibition of serve: “1) whether there is a significant gap in wireless service and 2) whether the proposed location is the least intrusive on the values the Board’s denial sought to serve.” By the testimony of Plaintiff’s expert, and also by the admission of the Board, Plaintiff did have a “major coverage gap” in Leonia. The record also showed that the installment of the proposed facilities would fill a majority of that gap. For these reasons Plaintiff had satisfied the first prong of the test. As for the second prong, the court relied heavily on Plaintiff’s investigation into alternative sites and its expert’s opinion that placing the facilities on the subject building would have the least negative aesthetic impacts. The court agreed, and found that the proposed facility was the least intrusive means of closing the coverage gap.

Lastly, the court addressed Plaintiff’s third argument that the denial of the application was not supported by substantial evidence. Under the TCA, “Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” New Jersey law requires “an applicant to prove both positive and negative criteria to obtain a use variance.” The negative criteria require proof that the variance “can be granted without substantial detriment to the public good” and that it “will not substantially impair the intent and purpose of the zone plan and zoning ordinance.” In the commercial context, the positive criteria is satisfied if the use is particularly suited for the proposed site, which can be met if the use promotes the general welfare. A facility promotes the general welfare if an FCC license was issued to the service provider.

Here, positive criteria was satisfied because 1) the building is particularly suited for T-Mobile’s use because it would lessen the coverage gap, and 2) T-Mobile has an FCC license. Regarding the negative criteria, the court found that Plaintiff had sufficiently established that variance could be granted without adversely affecting the public good or being inconsistent with the intent and purpose of the ordinance. For support, the court emphasized once again that the equipment used by Sprint was very similar and already installed on the roof at issue and that no expert of the Board disputed the contention that placing the facilities on an existing building is more desirable than constructing a new tower. Also, the Board never proposed a more suitable alternate location.

Additionally, the court found that the variance at issue here is “not inconsistent with the intent and purpose of the master plan and zoning ordinance.” In fact, the Leonia Zoning Code even stated that the ordinance’s purpose was to collocate wireless antennas on as few buildings as possible rather than spread them out or construct new ones. Because T-Mobile’s plan was to place its facilities with Sprint’s on the same building, its proposal was consistent with the objectives of the ordinance. Therefore, for these reasons, the denial was not based on substantial evidence and the Court required the Board to grant T-Mobile’s application and associated permits.

T-Mobile Northeast LLC v Borough of Leonia Zoning Board of Adjustment, 2013 WL 144269 (D.N.J. 1/10/2013)

 


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