Ho! Ho! Ho! Ho-Ho-Kus (NJ) is a Christmas Present to Cities & Counties (And it's from a Federal Court)...

PlanWireless is aware that Federal Appeals Court decisions are the only way that case law will be built for the issues relating to Section 704 of the Telecommunications Act of 1996 (TCA). And PlanWireless has been telling readers about the first two appeals court decisions (Virginia Beach in the October and November 1998 issues and Ontario in the April, May and June 1998 issues). But, occasionally, PlanWireless sees a decision that has implications for every local government. AT&T Wireless Services, Bell Atlantic Nynex Mobile (BANM) & Nextel Communications v. Zoning Board of Adjustment of the Borough of Ho-Ho-Kus is PlanWireless' nomination for the decision that has something for everyone.

The three wireless carriers, with AT&T Wireless Services in the lead, sued the Borough of Ho-Ho-Kus over the denial of a 125-foot monopole within the Borough's Public Works yard. The monopole was to have been a tri-location for three carriers. The Borough leased the site to the three carriers contingent upon the procurement of the required zoning variances, special use permits and building permits. Two-and-a-half years and 44 public hearings later, the Borough of Ho-Ho-Kus denied the application and the carriers sued, alleging the following four violations of Section 704 of the Telecommunications Act.

• The denial was not rendered within a reasonable time.
• The denial was not supported by substantial evidence.
• The denial amounted to unreasonable discrimination against providers of functionally equivalent personal wireless services.
• The denial prohibited or had the effect of prohibiting personal wireless service.

Judge Maryanne Trump Barry left no stone unturned in her decision, while granting summary judgment to the Borough. PlanWireless is aware of several local governments that believe that, even if they do not want a personal wireless service facility as it is proposed, if a carrier can show a demonstrated need for the proposal, then the local government must approve the application. Those jurisdictions need to read this decision, because it just ain't so.

Forty-Four Public Hearings & 2 1/2 Years was Within a Reasonable Time

The Telecommunications Act requires that a decision on a personal wireless service facility be made within a "reasonable time." In support of their case, plaintiffs pointed to the two-and-a-half years taken by the Borough to render a decision and the more than one month it took to issue a written decision.

However, the Judge found that the Board acted conscientiously, affording all parties, including the public, a fair and full opportunity to be heard and that the one month the Board took to prepare its written decision was eminently reasonable.

State Law Defines Substantial Evidence

The Telecommunications Act requires that decisions to deny construction of a personal wireless service facility be in writing and supported by substantial evidence.

The Judge looked to New Jersey law to determine if the decision was based on substantial evidence, despite the carriers' insistence that the Telecommunications Act overrides state authority. The Judge ruled, however, that because the Telecommunications Act explicitly preserved local zoning authority, decisions must be applied under established principles of state and local law.

In New Jersey, an applicant must establish "positive" and "negative" criteria. The positive criteria generally require an applicant to establish "special reasons" for the variance, while the negative criteria require proof that the variance can be granted "without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." The positive and negative criteria are then used differently, depending on whether the proposed use is "inherently beneficial." The applicant's burden of proof becomes easier if the project is considered inherently beneficial.

The Ho-Ho-Kus Board decided to analyze the application from both perspectives: as if the project were "inherently beneficial" and as if it were not. In both analyses, the Board found that the application did not meet the necessary standard and denied the variances.

The Judge noted that, approximately six months after the Board's decision, the Supreme Court of New Jersey declined to declare mobile communications facilities that require construction of towers or monopoles to necessarily be inherently beneficial uses.

The Court found that the Board's decision, under both the "inherently beneficial" and "non-inherently beneficial" tests, was supported by substantial evidence. Some of the evidence in the Board's decision is as follows:

• The Zoning Ordinance limits towers and antennas to 50 feet and requires that the distance between the structure and the adjacent property line be equal to or greater than the height of the structure. The proposed monopole would be almost three times the height limit and would virtually abut the property line.
• The proposed monopole and equipment shelters would be extremely close to a number of facilities used by the public.
• The monopole would have a substantial detrimental effect on surrounding properties primarily because of its adverse visual impact and its effect on real estate values.
• The Board found that the monopole would have a negative impact on neighboring residential real estate values. The Board relied on the testimony of a tax assessor, who conducted a study of property values near facilities such as cellular towers and compared them with properties not near such facilities and found cellular towers cause a significant reduction in the value of property near the tower. The assessor concluded that the properties near the site would suffer an aggregate loss of over $660,000. The Board also considered the testimony of the plaintiff's real estate appraisers but rejected it because their studies were in communities that were substantially different from Ho-Ho-Kus. The assessor's "paired analysis" will be a subject of a future article in PlanWireless.
• The 127-foot monopole would be the tallest structure in the Borough and would tower over adjoining residential areas. The monopole would be taller than the existing tree line, estimated to be 70 feet high. Because the trees are deciduous, the monopole would be even more visible for a significant portion of the year.
• The Board considered, but did not agree with, the conclusions of the plaintiff's expert who testified that the visual impact of the monopole on surrounding neighboring residences would be "de minimis." The Board rejected the expert's photographs because none were taken from the yards or windows of neighboring residences. Instead the Board relied on the photographs and testimony of an expert (who lived in Ho-Ho-Kus) who viewed the site, and took photographs, from the yards of the residences. While the plaintiffs took issue with these photographs (because the expert was a resident of the Borough) the Board had made clear it was relying on the facts and exhibits presented by the expert and not his place of residence.
• The Board rejected plaintiff's arguments that "aesthetic concerns" such as visual impact cannot be considered. The Board relied on the testimony of the plaintiffs own expert who acknowledged that visual impact is considered in evaluating the negative criteria for a variance. The Judge noted that the legislative history of the Telecommunications Act leaves little doubt that local boards can treat cellular communications facilities differently if they "create different visual, aesthetic, or safety concerns ... to the extent permitted under generally applicable zoning requirements."
• The Board determined that the public interest served by the monopole was not "compelling" because there was service in the area and the quality of the service was adequate, although the monopole would improve service. The plaintiffs argued that instead of accepting its experts' testimony on the need for service in the area, the Board looked to the testimony of two local residences who recorded cellular phone calls within the Borough. After listening to the recordings, the Board concluded that the calls were "clearly audible" with "minimal static."

The Judge, in finding that the decision was based on substantial evidence, stated that:

(W)hen faced with competing experts, the Board must make difficult decisions -- and did so here, after observing and questioning the witnesses and examining all of the exhibits and studies ... The only task before the Court is to determine whether there was enough evidence before the Board to support the decision it made.

Decision Did Not Unreasonably Discriminate

The Telecommunications Act requires that the Board's decision not "unreasonably discriminate among providers of functionally equivalent services." The Court found no evidence that the decision favored one carrier over another or that the decision favored current providers. The Judge stated:

Even if some sort of unequal treatment could be discerned, The unequal treatment must be unreasonable ... A zoning authority will not be found to have acted unreasonably if it had a "legitimate basis" for its decision ... Legislative history of the TCA states that the Act was intended to "provide localities with the flexibility to treat facilities that create different visual, aesthetic or safety concerns differently to the extent permitted under generally applicable zoning requirements."

Are We Being Served? (Apparently, the Answer's Yes)

After reading through all the reasons why the carriers felt they had a complaint, the quote that PlanWireless feels is most telling from the Judge's decision is:

Were courts to hold that merely because there are some gaps in wireless service in an area (or even if service is basically unavailable as in the case of Nextel), the public interest necessarily tips the balance in favor of allowing a variance, local boards would be obligated to approve virtually every application which would improve service, without regard to its impact on the surrounding areas. That simply is not the case.

The Judge made this decision in face of the testimony from three radio frequency engineers for the carriers who made the following claims:

(T)he radio frequency engineer for Cellular One (now known as AT&T Wireless), testified that although there is always a chance that a call might go through ... three areas were deemed "no service" areas and the business district has poor coverage ... Similarly, the radio frequency engineer from BANM ... deemed BANM's cellular service in the area to be "unreliable" and of "poor, unacceptable quality" ... Finally ... the engineer for Nextel, testified that coverage within the Borough under the Nextel system for enhanced specialized mobile radio services is "almost nonexistent."

In jurisdictions where "adequate service" is considered a standard of review, the above testimony from engineers would be all that is necessary for approval. However, as PlanWireless has been telling its readers and clients: technology cannot make the case for -- or against -- a cell site. Don't try to prove that service is "needed" or not, because need is in the eyes of the beholder.

The Judge noted while the engineers for the carriers testified that the monopole was necessary to meet their goal of providing "land-line quality" service, FCC regulations require that a licensed wireless provider need only provide "sound, favorable, and substantially above a level of mediocre service" in order to renew its license.

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