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Sprint Spectrum, L.P. v. Township of Warren Planning Board

325 N.J. Super. 61, 737 A.2d 715 (Law Div. 1999)

ZONING; VARIANCES; TELECOMMUNICATIONS; PREEMPTION—The Telecommunications Act of 1996 is not so broadly preemptive as to exclude a telecommunications applicant for land use approvals from having to demonstrate its compliance with Federal radio frequency emissions standards.

A telecommunications carrier wanted to install a PCS wireless broadcast “cell site” and required local planning board approval to do so. By letter from the municipality’s Health Officer, it was advised that its application had to be reviewed by the Board of Health before it would be permitted to proceed before the planning board. The letter outlined the areas of inquiry relevant to the Board of Health. The applicant responded immediately, contending that under the provisions of the Telecommunications Act of 1996, 47 U.S.C. § 332 (the Act), its application was excluded from any Board of Health review. Instead, it offered to appear and answer questions and such a meeting was scheduled. Prior to the meeting, however, the Health Officer requested that the applicant’s engineer be present to answer questions regarding radio frequency (RF) emissions at the site. Again, the applicant objected, claiming that such an inquiry was prohibited by Federal law. Nonetheless, the applicant did submit a report from a major research laboratory. That report asserted that RF emissions at the proposed facility complied with applicable regulations promulgated by the Federal Communications Commission (FCC). After a great deal of back and forth, the planning board denied the applicant’s request for a waiver of Board of Health review and advised the applicant that the application would be considered incomplete until such time as the Board of Health’s inquiries with regard to RF emissions and other health issues were satisfied. At this point, the telecommunications company sought an order from the courts requiring the planning board to deem the site plan approval application complete. Essentially, the telecommunications company argued that Federal law broadly preempts any local or state government entity from interfering with the effectuation of the Act’s purpose and that it specifically prohibits a Board of Health and a planning board from inquiring into the effects of RF emissions as a precondition to approval of a land use application. In addition, the applicant contended that under Smart SMR of New York, Inc. v. Fair Lawn Board of Adjustment, 152 N.J. 309 (1998), local consideration of RF emissions was improper. The planning board contended that the applicable Federal law could not be used to interfere with legitimate and ordinary inquiries of the Board of Health. In addition, it contended that the Act actually preserved local governmental control over zoning and land use matters provided that such actions could not be based on the environmental effects of RF emissions which had been shown to comply with the applicable guidelines established by the FCC. Further, the Board of Health contended that the applicant’s obligation to comply with its reasonable public health requirements with regard to issues other than the RF emissions (such as site security, the use of back-up generators, battery storage, and leakage) was plainly not preempted by the Act. Finally, the Board of Health argued that the Act was not devised to exempt applicants from the requirements for filing applications and supporting documents nor from attendance at meetings with a Board of Health to present their applications and answer questions, except where RF emissions compliance had been properly demonstrated. In essence, in the Board’s view, the question was whether the telecommunications company should have been required to submit satisfactory proof that its proposed facility complied with the standards set by the relevant Federal regulations and provide information regarding potential health concerns at the site other than RF emissions concerns. The preliminary issue faced by the Court was whether the local planning board had improperly delegated some duties to the local Board of Health. To this question, the Court responded that there was nothing in the Municipal Land Use Law which prohibited the procedure utilized by this particular planning board. Nothing in the requirement itself actually constituted a decision by the planning board to defer its decision making authority to the Board of Health, which would be improper under the Law. With respect to the main issue, the Court agreed that the Act expresses a strong preemptive policy but also held that the Act expresses an intention to preserve, in general, the authority of state or local government to assert and to perform their usual zoning functions. In addition, the Act requires, by its own terms, that an applicant demonstrate compliance with federally-established RF emission levels as a prerequisite to preemption. In the telecommunication company’s view, compliance could be shown merely by delivering a report. Along those lines, the telecommunications company appeared to believe that it was beyond the scope of a local authority’s power to review such a report, to raise questions about its methodology or its calculations, or to make any inquiry of any kind, in spite of the fact that in this case the unsigned and unverified report did not met the standard required by the Federal regulations. In essence, nothing in the statutory language was so broadly preemptive as to excuse an applicant from having to demonstrate compliance with FCC regulations and nothing permitted an applicant to submit an unsigned report with technically complex calculations and then to contend that a municipality is bound by statute to accept the assertion that the facility is in compliance. The Court refused to deem the application as complete. “To grant [the applicant] the relief it seeks would be to exempt it completely from review by the appropriate local authorities, a result neither mandated by nor permitted by the Act.”


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