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New York SMSA Ltd. v. Township of Mendham Zoning Board of Adjustment

366 N.J. Super. 141, 840 A.2d 901 (App. Div. 2004)

ZONING; TELECOMMUNICATIONS—A court analyzes how a cellular telephone “service gap” analysis is to be made under the Federal Telecommunications Act and what burdens an applicant for a tower variance must meet.

A partnership of wireless communications service providers had its application for a zoning variance denied by the local zoning board. The variance was for a wireless communications tower on residential property, and the board found that the proposed tower was not particularly suited to the site and that its negative impact on aesthetics and property values would be detrimental to the public good. The partnership appealed this decision, claiming that the denial violated the Federal Telecommunications Act (TCA), which limits the authority of local zoning boards to render decisions that effectively prohibit wireless communications services.

Under the TCA, in applying for site plan approval and variances from local zoning ordinances, wireless communication carriers must demonstrate that there is an existing, significant gap in service within the municipality; that their proposal would fill the gap in the least intrusive manner; that they have made good faith efforts to investigate alternative technologies and alternate sites which might be less intrusive in the community; and that the area is not already being served by another wireless provider. Specifically, the partnership claimed that the TCA required the board to grant their application once they established that there was a significant gap in service and that their proposal was the least intrusive means of closing that gap. The board, however, maintained that their own experts testified that a significant gap did not exist, and that their decision did not prohibit wireless communications services in general.

First, although there is no bright line test for determining if there is a significant gap in service, the mere presence of “dead spots” does not qualify. There are two basic questions in evaluating whether a carrier has established a significant gap in coverage. Has the cellular provider established that the quality of cellular service is sufficiently poor so as to rise to the level of a “significant gap,” and has the cellular provider established that the purported gap in service affects a significant number of users?

The Appellate Division felt it was important that the seven radio frequency engineering experts participating in the trial, including those retained by the board, testified that there was a significant gap in the service provided by each provider. The gap covered a major arterial road and a large local road that contained the township’s only commercial area where the fire department, police department, community building, and post office were situated. The Court held that a disruption in service in any of these areas would affect a significant number of users. Finally, since the partnership represented all of the licensed wireless communications providers in that part of the state, another provider would not likely serve the area. Therefore, in the Court’s mind, a significant gap was established.

The second obligation of the partnership was to prove that the means proposed to fix the gap were the least intrusive means of doing so. This required a showing that a good faith effort had been made to identify and evaluate less intrusive alternatives. Zoning boards do not have the power to reject an application based on the idea that a possible alternative site is both suitable and available. This is because it would be impossible for a provider to disprove the suitability of every possible alternate site because of the uncertainty surrounding the availability and ultimate suitability of such sites. The Court held that the record conclusively established that the partnership diligently investigated all reasonable alternate technologies, designs, and locations.

Finally, the partnership argued that it would be a waste of its resources to continue to investigate alternate sites or technology. The Appellate Division agreed, holding that a provider does not have to pursue alternatives when it has established that further reasonable attempts to build a wireless communication facility to fill the gaps in service would likely be a waste of time.

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