Posted by: Patricia Salkin | August 14, 2015

Third Circuit Holds Denial of Variance to Allow Construction of Monopole Was Effective Prohibition of Wireless Service

The Zoning Board of Adjustment of Paramus, New Jersey appealed from the District Court’s grant of summary judgment to Appellees Sprint, T–Mobile and Omnipoint Communications in their challenge to the ZBA’s denial of a requested variance to a city zoning ordinance that prohibited the construction of monopoles to fill gaps in wireless service. They proposed construction of a faux-tree “monopole” in one of two sites after investigating possible locations for its placement. Paramus had an ordinance which, among other things, prohibited the construction of cellular monopoles, defined as “an antenna structure consisting of a single pole in commercial and residential zones.”

Plaintiffs, the 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 its application for zoning approval to construct a 125–foot faux-tree wireless communications facility, known as a “monopole,” at the Ambulance Corps site in order to fill significant gaps in their wireless coverage; however Paramus subsequently enacted a new telecommunications 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 District 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. Additionally, the ZBA’s reliance on the visual impact of the monopole does not represent “substantial evidence” to support the denial of the variance because, as Judge McNulty noted, there was “no clear aesthetic winner” between a DAS and the proposed monopole. The DAS also had significant reliability concerns associated with its deployment on utility poles, its small coverage areas per node, and its vulnerability to disruption. Accordingly the District 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. Finally, since the ZBA never brought up its argument that a federal court injunction requiring it to grant a variance to Appellees would result in unconstitutional commandeering before the District Court, the court consider it waived.

Because the court found that the ZBA’s denial of Appellees’ zoning variance violated the TCA’s “effective prohibition” language and was not based on “substantial evidence” as required by both the TCA and MLUL, it affirmed the District Court.

Sprint Spectrum, L.P. v Zoning Board of Adjustment of the Borough of Paramus, 606 Fed. Appx. 669 (3rd Cir. 4/20/2015)

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