New Brunswick Cellular Telephone Co. v. Borough of South Plainfield Board of Adjustment

D’ANNUNZIO, J.A.D.

(dissenting).

I would affirm the Law Division’s reversal of the Board of Adjustment’s (Board) denial of Comcast’s variance application.

The Board’s resolution did not address the affirmative criteria, apparently accepting the use as inherently beneficial, as we held in Nynex Mobile Communications Co. v. Hazlet Tp. Zoning Bd. of Adj., 276 N.J.Super. 598, 609-12 , 648 A.2d 724 (App.Div.1994). In Pierce Estates v. Bridgewater Tp., 303 N.J.Super. 507 , 697 A.2d *172 195 (App.Div.1997), relied on by intervenor-appellant, we affirmed the denial of a variance to build a steel “communications” tower 343 feet high in a residential zone. We concluded that the applicant had not established that the proposed tower was an inherently beneficial use. Id. at 517 , 697 A.2d 195 . Pierce is distinguishable from the present case because the proposed tower was to be built by the landowner who was not in the communications business. The tower would have been a speculative venture in the hope that once it was built a communications company might lease it. Consequently, we held that the applicant “was simply unable to show that any public need would actually be served by the proposed tower.” Ibid.

The status of mobile communications facilities as inherently beneficial uses is enhanced by the Telecommunications Act of 1996 (TCA), Pub.L. No. 104-104, 110 Stat. 86, codified at 47 U.S.C.A. § 151 et seq. The TCA identifies the promotion of competition in the providing of commercial mobile services as a core value of the Act and as “in the public interest.” 47 U.S.C.A § 332(c)(1)(C). In Sprint Spectrum L.P. v. Jefferson County, 968 F.Supp. 1457 (N.D.Ala.1997), the court observed that the TCA “is designed to foster competition in the communications industry as the best means of promoting rapid deployment of advanced information technologies by the private sector, rather than the government.” Id. at 1465 ; accord Western PCS II Corp. v. Extraterritorial Zoning Auth., 957 F.Supp. 1230, 1237 (D.N.M.1997); BellSouth Mobility Inc. v. Gwinnett County, Ga., 944 F.Supp. 923, 927 (N.D.Ga.1996).

The TCA specifically addresses local zoning authority. 47 U.S.C.A. § 332 (c)(7)(A) provides that nothing in the TCA shall limit local authority regarding the placement of personal wireless service facilities, “[ejxeept as provided in this paragraph.” The exceptions, described in 47 U.S.C.A. § 332 (e)(7)(B) (hereafter subsection 7(B)), are significant. Subsection 7(B) provides:

(B) Limitations

*173 (i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the [Federal Communications] Commission for relief.

47 U.S.C. § 332 (c)(7)(C) provides:

(C) Definitions

For purposes of this paragraph—

(i) the term “personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;

(ii) the term “personal wireless service facilities” means facilities for the provision of personal wireless services; and

(iii) the term “unlicensed wireless service” means the offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services (as defined in section 303(v) of this title).

In addition to establishing the “substantial evidence” standard to measure local action in section 332(c)(7)(B)(iii), subsection 7(B) manifests Congress’ determination that the provision of wireless *174 communication service and its supporting facilities is an important national interest. As previously indicated, Congress also had determined that such services should be available from multiple providers in competition with each other. 47 U.S.C.A. § 332 (c)(1)(C). At least one court has observed that the TCA’s limitations on local zoning authority implements Congress’ intent to increase competition in the industry. Western PCS II, supra, 957 F.Supp. at 1237 . Thus, in terms of New Jersey zoning law, the Board’s assumption that Comcast’s proposed use is an inherently beneficial use was correct.

Because Comcast’s monopole satisfied the affirmative criteria, the Board focused on the negative criteria, and denied the variance on that ground. In Sica v. Board of Adj. of Wall, 127 N.J. 152 , 603 A.2d 30 (1992), the Court addressed the negative criteria in a case involving an inherently beneficial use. The Court held that in such a ease the Board must balance the affirmative and negative criteria because “the need for balancing is implicit in the statutory requirement that the grant of a variance must be “without substantial detriment to the public good.’ ” Id. at 164 , 603 A.2d 30 (quoting Medici v. BPR Co., 107 N.J. 1 , 22 n. 12, 526 A.2d 109 (1987)). The Court observed that “not every detriment will support the denial of a use variance. Only one that is ‘substantial ’ will suffice.” Ibid, (emphasis added).

The procedural guide suggested by the Court in Sica involves, in part, identification of “the detrimental effect that will enure fi*om the grant of the variance.” Id. at 166 , 603 A.2d 30 . Once the Board identifies the detrimental effect, it must “weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.” Ibid. The Court noted that “[t]his balancing, ‘[w]hile properly making it more difficult for municipalities to exclude inherently beneficial uses ... permits such exclusion when the negative impact of the use is significant.’ ” Ibid, (emphasis added) (quoting Baptist Home v. Borough of Riverton, 201 N.J.Super. 226, 247 , 492 A.2d 1100 (Law Div.1984)).

*175 Applying this test, I am persuaded that the negative impact of the proposed monopole is not significant. The proposed location of the monopole in the Borough’s most permissive industrial zone is the most important fact in this case. The M-3 zone is adjacent to Interstate Route 287 which, south of Route 22, is lined with industrial and commercial uses. The pole and its accessory facilities will occupy 2,500 square feet of a 133,000 square foot lot, the balance of which is used as a facility for the repair and storage of heavy machinery.

The majority opinion lists the permitted uses in the M-3 zone. Those uses include a variety of manufacturing and industrial processes, as well as office buildings and research facilities. On its face, Comcast’s pole with its array of antennas is compatible with those uses. The objectors’ planning expert testified that desirable manufacturing and office uses would not seek to locate in the M-3 zone if the pole is installed. However, he presented no empirical evidence to support that rather startling statement. Equally feeble as a rationale for precluding the pole was his testimony that the pole would not create jobs and would not contribute to the tax base. Although the pole and its supporting equipment will not create a single job, the installation is utilizing only 2,500 square feet of a large industrial lot and is not displacing any existing employment opportunities. I conclude that the record does not support a finding as required in Sica, supra, that the proposed monopole’s negative impact, if any, would be significant or substantial.

I agree with the majority that the record does not adequately support the conclusion that the monopole is a permitted use in the nearby M-2 zone. That zone permits “Television and Radio Studios and Antennas.” The language suggests that a permitted antenna must be used in connection with a television or radio “studio.” Comcast’s application does not involve construction of a “studio.” Moreover, the proposed pole would exceed the M-2 zone’s height limitations and a variance under N.J.S.A. 40:55D-70d(6) would be required. In any event, the Board’s resolution *176 did not find that the pole is a permitted use in the M-2 zone and the Board’s denial was not based on such a fact.

Comcast’s application preceded enactment of the TCA 1 and neither the Board nor the Law Division applied the federal statute. Nevertheless, the Law Division’s judgment is consistent with the TCA, and the TCA buttresses the conclusion that the Board erred in denying Comcast’s application. The requirement in 47 U.S.C.A § 332(e)(7)(B)(iii) that a local government’s denial of an application to locate a wireless service facility be “supported by substantial evidence” imposes the burden of persuasion on the local government agency. See Sprint Spectrum L.P., supra (holding that zoning authority’s moratorium on processing of development permits for cellular communication towers violated the TCA); Illinois RSA No. 3, Inc. v. County of Peoria, 963 F.Supp. 732 (C.D.Ill.1997) (holding that denial of special use permit to build cellular communications tower in low density residential district violated TCA because it was not supported by substantial evidence, though the denial was not arbitrary or capricious and, therefore, did not violate the Illinois Constitution); Western PCS II, supra (holding that .denial of special exception request to mount wireless telecommunications antenna to water tank violated TCA because it was not supported by substantial evidence; it amounted to unreasonable discrimination among providers of functionally equivalent services, and violated TCA’s requirement that local regulations not have the effect of prohibiting provision of personal wireless services); BellSouth Mobility Inc., supra (holding that denial of tall structure permit for a monopole of 197 feet violated TCA because it was not supported by substantial evidence). The TCA shifts the burden of persuasion to the Board whether or not the facility is considered an inherently beneficial use under New Jersey zoning law. Thus, it appears that the TCA dilutes the impact of the 1997 amendment of N.J.S.A. 40:55D-70c *177 and d, as applied to wireless communications facilities. L. 1997, c. 145.

Although the issue was not raised below, the Board also may have violated 47 U.S.C.A. § 332 (c)(7)(B)(i)(I) which provides that a local government “shall not unreasonably discriminate among providers of functionally equivalent services.” This subsection of the TCA is relevant because the Board, by resolution dated August 2, 1994, nine months before it denied Comcast’s application, granted a variance to one of Comcast’s competitors to permit the erection of a steel tower 191 feet in height in the M-3 zone. The United States District Court addressed similar facts in Illinois BSA No. 3, supra, and found that the County had violated the TCA’s antidiscrimination provision. The court stated:

The County admits that it has permitted a cellular tower in the R2 district, and the Zoning Code also does not expressly permit cellular towers as speeial uses in the R2 district just as it does not do so for the R1 district. If the County refuses to permit towers in the R1 district but allowed one in the R2 district, then it violated the Telecom Act’s antidiscrimination provision. 47 U.S.C. § 332 (c)(7)(B) prohibits local governments from unreasonably discriminating “among providers of functionally equivalent services.” The County offers no reason why it would permit someone to construct a cellular tower in the R2 district and not the R1 district. And without any reason, discrimination is unreasonable and violates the Telecom Act.

[ 963 F.Supp. at 744 .]

The Board’s resolution in the present ease did not attempt to distinguish Comcast’s application from the 1994 application. In addition to being relevant regarding the discrimination issue, the prior approval, involving a higher and larger tower in the same zone, provides additional support for the conclusion that the denial of Comcast’s application was not supported by substantial evidence.

I make a concluding observation. Until the ripening of new technology makes these antennas unnecessary, they will be built. If so, then it appears that in most cases their construction in commercial/industrial zones, such as South Plainfield’s M-3 zone, rather than in residential areas, will have the least impact on a community. Moreover, if a municipality may preclude a wireless *178 communication facility in an industrial/commercial zone such as the M-3, as the majority holds, then it can prevent the location of such facilities in more restrictive zones. It is unlikely that the federal courts, in applying the TCA, -will permit such limitations on •the development of a competitive wireless communications network. 2

I would affirm the Law Division.

The TCA was enacted on February 8, 1996.

It is likely that future challenges of local zoning decisions preventing the construction of such facilities will be in the United States District Court. See 47 U.S.C.A. § 332 (c)(7)(B)(v); 28 U.S.C.A. § 1331 .