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Cellular Telephone Company v. Zoning Board of Adjustment of the Borough of Ho-Ho-Kus

197 F.3d 64 (3rd Cir. 1999)

ZONING; TELECOMMUNICATIONS—Local zoning authorities have the limited right to review the availability of wireless services in their municipalities and can apply their zoning laws to the accessory structures servicing a monopole.

Three cellular communication providers were denied variances necessary to build a wireless communications facility. They intended to build two or three buildings and a 125 foot monopole with antennae reaching as high as 127 feet, all surrounded by a six-foot fence. Their zoning board application sought thirteen variances. After two and one-half years and forty-four public hearings, the board voted to deny the applications. The board’s resolution found: (1) existing cellular telephone service within the municipality was adequate; (2) the site was already congested and numerous bulk variances were required; (3) the monopole would have a substantially detrimental impact upon the public good; and (4) the proposed structure was too massive and would cause a significant decline in real property values. On balance, it denied the applications because the public good being served was not compelling and there were no conditions that could be imposed that could reduce the impact on the public. Initially, the U.S. District Court held that the board’s “denial did not have the effect of prohibiting personal wire services… .” On further appeal, the providers claimed that the municipality’s decision violated section 704 of the Telecommunications Act of 1996 (Act) because: “1) The Zoning Board unlawfully considered the quality of existing wireless service during the decision process; 2) its decision [was] not supported by substantial evidence; and 3) the decision [had] the effect of prohibiting personal wireless services.” The Court recognized that the Act expressly preserved local zoning authority over personal wireless facilities but also limited local zoning authority. “First, local regulation may not unreasonably discriminate among providers of functionally equivalent wireless services. ... Second, local regulations may not prohibit or have the effect of prohibiting the provision of personal wireless services. ... Third, local regulators must act on placement, construction and modification applications within a reasonable period of time. ... Fourth, all decisions denying a request to place, construct or modify a personal wireless service facility must be in writing and supported by substantial evidence contained in a written record. ... Fifth, any person adversely affected by local regulators’ final action on a final placement, construction, or modification application may seek judicial review in any court of competent jurisdiction. ... Finally, the statute substantially eliminates the authority of local officials to regulate personal wireless facilities on the basis of the environmental effects of radio frequency emissions.”

At hearings before the board, three engineers testified that there were areas within the municipality where the quality of service was poor, almost non-existent, and marginal at best. In response, two local residents presented tape recordings they had made of twelve cellular telephone calls demonstrating relatively good connection and transmission quality. In response, one of the providers submitted data from 12,500 calls originating from 2,500 locations within the municipality showing inadequate existing service and also pointed out major deficiencies in the local residents’ methodology. The board accepted the residents’ recordings as competent evidence that existing wireless service as a whole was adequate. On appeal, the providers argued that local authorities were barred from considering quality of service issues when determining whether and where to permit wireless communications facilities within their jurisdictions. As an initial matter, the Court concluded that “[c]ontrary to the providers’ arguments, we conclude that barring all local quality-of-service considerations could just as easily undermine the Telecommunications Act’s Goals as further them.” For example, “[a] finding that existing service is relatively poor could tip the scale in favor of granting a variance that, absent consideration of current quality, might otherwise be denied.” Nonetheless, “determinations concerning the quality of existing service must be based on substantial, competent evidence and remain subject to judicial review.” Further, “local officials must always ensure that neither their general policies nor their individual decisions prohibit or have the effect of prohibiting personal wireless services” and “local zoning policies and decisions have the effect of prohibiting wireless communication services if they result in ‛significant gaps’ in the availability of wireless services.” As a consequence, the Court remanded this matter to the District Court “to determine, if necessary, whether there was a significant gap in service and, if so, whether there are any less intrusive means for closing that gap.”

The providers argued that because wireless communications antennae must be located above the tree line, the municipality’s 50-foot height restriction amounted to an effective ban on wireless facilities because the prevailing tree line was 70 feet high. The municipality’s zoning ordinance also required that the distance between a monopole and an all adjacent property lines be at least as far as the monopole is high. The providers argued that because this provision limited their proposed facility to sites containing a minimum of one and one-half acres in a municipality where there was virtually no open space, it had a prohibitory effect. The Court found that the providers’ arguments “failed to address the central issue.” The Act bars local regulation that prohibits or has the effect of prohibiting personal wireless services, not the facilities that provide these services. Consequently, the Court was not prepared to hold that every community must permit wireless communication facilities somewhere within its borders regardless of the need for such facilities. The Act does not afford deference to local findings. It requires only that any decision denying a request to place, construct, or modify personal wireless services be in writing and be supported by substantial evidence contained in a written record. Substantial evidence “does not mean a large or considerable amount of evidence, ‘but rather such evidence as a reasonable mind might accept as adequate to support a conclusion.’” Using that analysis, the Court was still prepared to accept the manner by which the board analyzed its evidence and testimony regarding the effect that the towers might have on the value of nearby homes. With respect to the conflicting testimony about the quality of service, the Court concluded that “there was no substantial evidence [in the record] to support the Board’s conclusion that the current level of personal wireless service [in the municipality was] adequate.” Consequently, it reversed the District Court’s summary judgment.

In sum, the Court reversed the District Court’s summary judgment on the Telecommunications Act. It affirmed the District Court’s ruling that the board was not barred from considering the quality of existing personal wireless service, and that its findings regarding the proposed monopole’s economic impact on surrounding properties was supported by substantial evidence. The Court also concluded that the board correctly identified the factors affecting the positive criteria necessary to approve a conditional-use variance under State law. The matter was remanded to the District Court with instructions that it be further remanded for the board to reconsider the proposed facility in compliance with the Third Circuit’s opinion.


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