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Sprint Spectrum L.P. v. The Zoning Board of Adjustment of the Borough of Paramus, New Jersey

09-4940 (U.S. Dist. Ct. D. N.J. 2010) (Unpublished)

ZONING; TELECOMMUNICATIONS — According to the Federal Communications Commission, telecommunication coverage gaps are to be measured not just with respect to the first carrier to enter into the market, but also with respect to all subsequent entrants and therefore a telecommunications applicant for a zoning variance need only establish the need for the variance based upon a showing of a significant gap in coverage of the applicant-carrier alone.

A cellular telephone company proposed to construct a wireless telecommunications facility. It required variances with respect to permitted use, maximum building height, and minimum setbacks. The company called an expert witness who testified that there was a significant gap in wireless coverage in the area, that alternate sites were not suitable, and that alternate technologies were not suitable to remedy the gap in coverage.

The municipality denied the application, finding that the company had failed to present evidence that the area was not being served by another wireless carrier and that the company had failed to investigate other less intrusive ways of providing coverage.

On appeal, the Court observed that the Telecommunications Act of 1996 (TCA) limits the traditional authority enjoyed by state and local government to regulate land use and zoning when it is exercised in relation to personal wireless service facilities. An individual adverse zoning decision violates the TCA if the proposed facility will fill an existing significant gap in the ability of remote users to access the national telephone network, and the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.

The Court noted that the Federal Communications Commission had recently issued a declaratory ruling concluding that coverage gaps are measured not just with respect to the first carrier to enter into the market, but also to all subsequent entrants. Thus, a coverage gap may be established upon a showing of a significant gap in the coverage of the applicant-carrier alone. Here, the Court was persuaded that a significant gap existed because multiple experts testified to that effect, including through testimony from one hired by the municipality. Further, the gap covered several miles of a densely populated suburban community and the gap adversely affected call reception. The fact that the proposed facility might not provide seamless coverage did not alter the Court’s conclusion that the facility would adequately fill the coverage gap.

Second, the Court questioned whether the manner in which the company proposed to fill the significant gap in service was the least intrusive on the values that the denial sought to serve. The company was required to show that a good faith effort had been made to identify and evaluate less intrusive alternatives. To do so, it presented evidence that it had considered other sites in and around the coverage gap, and that an alternate distributed antenna system would not adequately fill the coverage gap. However, the municipality presented an expert who refuted the company’s testimony regarding the distributed antenna system. Because of the differing views of the experts, the Court found that a genuine issue of material fact existed as to whether a less-intrusive method existed, and denied the company’s summary judgment motion on that issue.

The company also argued that the decision of the land use board was not supported by substantial evidence in a written record. Specifically, the company contended that the zoning board had not considered the positive criteria in its analysis, as required by New Jersey statute. The Court noted that, under New Jersey law, a municipality may deny a variance to construct a proposed telecommunication facility based on aesthetics, but its reasoning must be supported by substantial evidence. The zoning board, in this case, did not specify the extent to which the facility would actually have impacted neighboring properties. The general concerns expressed by the board were not supported by substantial evidence. Additionally, the safety concerns cited by the board were not supported by evidence in the record. At the end, the Court denied the company’s motion for summary judgment because the reasonableness of the municipality’s decision depended upon a determination as to whether the alternate technology was feasible.


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