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New Cingular Wireless PCS, LLC v. The Township of Wayne

PAS-L-4914-06 (N.J. Super. Law Div. 2007) (Unpublished)

ZONING; TELECOMMUNICATIONS —It is unreasonable for a land use board to expect a telecommunications provider to wait a substantial time to see if the possibility of another available site might be realized.

A wireless provider submitted a planning board application seeking conditional use and site plan approval for the installation of wireless telecommunication antennas on the roof of an existing privately owned building in a non-residential zone. Under the municipality’s zoning ordinance, in order to be granted conditional use and site plan approval, the provider had to prove that no lower priority location, typically municipal land, was available. At the time of the first public hearing on the application, no municipal land was available for placement of the telecommunications equipment. The planning board urged the provider to privately negotiate with the municipality to obtain a lease for its contemplated cell tower. Thereafter, the municipality solicited public bids for construction and rental of a tower. The provider bid, but lost to a competitor. After the municipality awarded the contract to the competitor, the provider proceeded with its conditional use and site plan approval application and urged the planning board to find that the cell tower site was now unavailable. The board denied the application and responded that the site was still available as the provider had not shown proof that co-location of an antenna on the tower to be constructed was not available. The provider sued, challenging the board’s denial.

The Court addressed whether the board’s application of conditional use criteria was arbitrary, capricious, and unreasonable in that it was adverse to the purposes of zoning under the Municipal Land Use Law (MLUL), the municipality’s ordinance, and the purposes of the Telecommunications Act of 1996 (TCA). It answered in the affirmative. It found, under these authorities, that telecommunications equipment should be placed in areas where the adverse impact is minimized, and that antennas placed on existing buildings are inherently beneficial uses, unlike the municipality’s planned cell tower to be located on unimproved public land near a pond and sports complex. The Court therefore reasoned that the board’s denial was to raise revenue for the municipality by making the provider lease municipal land for its telecommunications equipment, and, as such, the raising of revenue was not a justifiable purpose of zoning.

The Court also found the board’s decision to be ad hoc decision making in that it apparently stretched a reasonable interpretation of what constituted an available location under the applicable ordinance. It held the board’s denial to be unreasonable because it was based on a finding that a possible public bid for co-location of a tower not yet built made that tower into an available site. The Court also found the board’s denial to have violated the TCA’s provision that local zoning regulations can’t prohibit or have the effect of prohibiting the provision of personal wireless services. It held that the board’s denial had the effect of prohibiting the provision of personal wireless services because this provider was prohibited from providing personal wireless services to its customers in the municipality unless the municipality could secure revenue by leasing its property.

In sum, the Court found that upon the denial of the provider’s good faith bid to lease the site in which a cell tower was to be constructed, there was no available municipal property at which telecommunications equipment could be placed. Thus, the provider met its burden of proving that all conditions required under ordinance were met. The Court found it unreasonable for the municipality to expect the provider to wait another year or more to make a bid to co-locate on a tower that had yet to be constructed. Accordingly, the Court vacated the board’s denial, and granted the provider’s application for site plan approval without any need for remand.

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