Posted by: Patricia Salkin | January 12, 2015

Fed. Dist. Court in NJ Holds that the Zoning Board’s Denial of a Variance to Construct a Monopole was an Effective Prohibition of Wireless Service in Violation of the Telecommunications Act

Plaintiff carriers, are the proposed lessees of two properties located within the Borough of Paramus, New Jersey: the “Ambulance Corps” site and the “Church of the Nazarene” site. Sprint filed an application for zoning approval to construct a 125–foot faux-tree wireless communications facility (monopole) at the Ambulance Corps site in order to fill significant gaps in their wireless coverage; however Paramus subsequently enacted a new ordinance which, among other things, specifically prohibited cellular monopoles (defined as “an antenna structure consisting of a single pole”) in commercial and residential zones. The Board denied the motion for a variance, finding that “the substantial height of the proposed monopole and its placement within a residential neighborhood would have a detrimental visual effect on the surrounding properties,” and that the Carriers “failed to investigate other less intrusive ways of providing coverage” and “did not put forth a good faith effort to explore and investigate alternative technology to provide coverage.” The court found that the Board’s zoning denial constituted an effective prohibition of wireless service, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), and then considered whether Plaintiffs adequately considered technological alternatives to the monopole, i.e. the feasibility of a DAS as a less intrusive alternative.

The court found that a DAS was not a feasible alternative because it will not offer comparable wireless service when measured against the coverage that can be provided by the proposed macro facility. Furthermore, the DAS had significant reliability concerns associated with its deployment on utility poles, its small coverage areas per node, and its vulnerability to disruption. Accordingly the Court held that the Board’s denial of Plaintiffs’ application to construct a wireless facility was not supported by substantial evidence under the TCA and New Jersey’s MLUL, and reversed.

Sprint Spectrum L.P. v Zoning Board of Adjustment of the Borough of Paramus, 21 F. Supp. 3d 381 (D. NJ 5/12/2014)


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