New Cingular Wireless PCS LLC v. Zoning Bd. of Adjustment of the Borough of N. Haledon

469 F.Supp.3d 262

NEW CINGULAR WIRELESS PCS LLC d/b/a AT&T Mobility, Plaintiff,

v.The ZONING BOARD OF ADJUSTMENT OF the BOROUGH OF NORTH HALEDON and the Borough of North Haledon, Defendants.

Civil Action No. 18-1889

United States District Court, D. New Jersey.

Filed June 29, 2020

Andrew B. Joseph, Kenneth J. Wilbur, Faegre Drinker Biddle & Reath LLP, Florham Park, NJ, Ingrid Dahlman Johnson, Faegre Drinker Biddle & Reath LLP, Princeton, NJ, for Plaintiff.

Michael P. De Marco, De Marco & De Marco, Esq., North Haledon, NJ, for Defendants.

Arleo, United States District Judge

THIS MATTER comes before the Court by way of the Plaintiff New Cingular Wireless PCS LLC d/b/a AT&T Mobility's ("Plaintiff" or "AT&T") Motion for Summary Judgment. ECF No. 41. Defendants the Zoning Board of Adjustment of the Borough of North Haledon (the "Board") and the Borough of North Haledon (the "Borough," and together with the Board, "Defendants") oppose the motion. ECF No. 46. For the reasons that follow, Plaintiff's motion is granted.

I. UNDISPUTED FACTS ¹

This case concerns whether the Board lawfully denied AT&T's application for a zoning variance to construct a cellular telephone monopole in the Borough.

A. AT&T's Monopole Variance Application

The Borough is a town of approximately 8,400 people in Passaic County, New Jersey. Am. Compl. ¶ 12, ECF No. 23; Pl. SOMF ¶ 43. It sits in a "heavily wooded area bounded by High Mountain to the west and a ridge to the east." Am. Compl. ¶ 11. Currently, there is an area in the northern portion of the Borough without reliable cell phone service. Pl. SOMF ¶ 1.² This includes an area of High Mountain Road, a "local thoroughfare," which, according to state transportation data, hosts thousands of daily traffic trips. Am. Compl. ¶ 15.

AT&T sought to close this coverage gap by constructing a new monopole³ in the northern portion of the Borough. On February 16, 2017, AT&T submitted an application (the "Application") to construct a monopole (the "Proposed Facility") at 5 Sicomac Road, near the intersection of Sicomac Road and High Mountain Road. Pl. SOMF ¶¶ 15, 31. The site for the Proposed Facility "includes a mix of commercial and retail uses, including a bank, medical office space, stores, several restaurants, and a Foodtown supermarket." Id. ¶ 15.

Under the Borough's Code, wireless telecommunications towers are prohibited on private property in Residential zones, permitted on Borough-owned property, and conditionally permitted in the Borough's Business and Industrial zones. Id. ¶ 11-12; see also (Borough Code §§ 600-160, 600-161, 600-162, Wilbur Cert. Ex. H, ECF No. 41.11. The only Business or Industrial zone in the northern portion of the Borough "is the B-1 zone at the intersection of High Mountain Road and Sicomac Road," the location of the Proposed Facility. Id. ¶ 14.

AT&T's Proposed Facility consists of a 143-foot tall " ‘monopine’ with simulated pine branches extending around and below the height of AT&T's dozen antennas in a triangular array near the top." Id. ¶ 33. Although the Proposed Facility would initially host only equipment from AT&T, it has the capacity to host equipment from three other carriers. Id. ¶ 34. AT&T sought a number of variances from the Borough Code for the Proposed Facility: a variance permitting a second principal use on the site, if applicable, a height variance for the monopole,⁴ a variance from the required setback of "300% of the height of the tower" from certain residential units or zoned land, Borough Code § 600-162(B)(5)(a)[2], and a number of variances to physically accommodate the Proposed Facility on the site and for the size of its equipment. Id. ¶¶ 35, 38-39.⁵

B. The Board's Hearings

The Board held four hearings over an eight month period on AT&T's application. Id. ¶ 41. At these hearings, AT&T presented testimony from a number of experts on radio frequency energy, radio frequency engineering, general engineering, a planning expert, and a real estate appraiser. Id. ¶¶ 42-59. Neither the Board nor any objector presented expert testimony on any of these subjects. Id. ¶ 60.

At the May 4, 2017 hearing, AT&T presented testimony from Daniel Penesso, a radio frequency engineer. Id. ¶ 42. He testified "that there was an area in excess of two square miles in the northern part of the Borough where AT&T customers lacked reliable access to personal wireless facilities," and that "the [Proposed Facility] was proposed at the minimum height necessary to remedy the gap." Id. He further testified that "due to topography, there were no alternatives capable of remedying the entire gap" in the Borough, and "potential locations in neighboring towns to the north or on Borough-controlled lots to the south could not remedy the gap." Id. ¶¶ 45-46. A different technological solution, known as a distributed antenna system ("DAS") was "not a feasible solution, particularly for in-building coverage, due to the large gap in question." Id. ¶ 47.

At that same hearing, AT&T presented testimony from Jim Dowling, a planning expert. Id. ¶ 49. Dowling prepared a visual analysis and testified that based on the design of the tower and the topography of the region, the Proposed Facility would have "a minimal visual impact." Id. ¶ 51.⁶ He further concluded that the dimensional variances for the rear and side set-backs, the equipment shed height variance, and the reduction in sizes of the parking spaces would have no detrimental effects, would not impair the town's zoning plan, and would not cause a substantial detriment to the public good. Id. ¶¶ 55-56. Dowling also testified that the requirement that the tower be set back three times its height from the nearest residence was excessive, and that the tower's setback was sufficient for its 143-foot height, because it was "approximately 243 feet" away from the nearest residential property. May 4, 2017 Hr'g Tr. at 77:13-78:22; Pl. SOMF ¶ 52. He further testified that this restriction could not be satisfied anywhere in the Borough. Pl. SOMF ¶ 52.

At another hearing on June 14, 2017, AT&T presented expert testimony from Mark Tinder, a real estate appraiser. Id. ¶ 59. Tinder testified it was his "conclusion that there would be no reasonable potential value impact that would be associated with" the Proposed Facility. June 14, 2017 Hr'g Tr. 29:17-19, Wilbur Cert. Ex D, ECF No. 41.7; Pl. SOMF ¶ 59.

C. The Resolution Denying AT&T's Application

The Board voted to deny AT&T's Application on November 17, 2017, and adopted the corresponding Board Resolution on January 10, 2018. Pl. SOMF ¶ 63. The Board found the Proposed Facility would not fill the entire coverage gap, that "testimony as to dropped calls was less than clear and was unpersuasive," and that it heard "insufficient testimony ... as to alternative sites for the installation or other technologies" to close the gap. Board Resolution ¶ 10(a).

The Board also noted that the Proposed Facility did not satisfy the Borough's requirement that it be set back 300% of its height from the nearest residential property, but did not address any benefit or detriment of granting this variance.

Id. ¶ 10(d). The Board provided no context or rationale in failing to address this requested variance.

The Board also found that AT&T had not sufficiently addressed whether the Proposed Facility could be located elsewhere on the site, and noted that AT&T had not attempted to purchase additional property to lessen or eliminate the need for bulk variances.⁷ Id. ¶ 10(e). The Board found AT&T did not demonstrate any legal hardship for the numerous requested bulk variances, which it found "contrary to the intent and purpose of the Borough's zoning code," but did not explain why. Id. ¶ 10(f).

The Board further found that the "main benefit" from the Proposed Facility was "for only the business purposes of [AT&T] and not that of the Borough or its residents." Id. ¶ 10(g). There was no testimony as to lack of cell coverage from other providers, and no "residents testif[ied] that they have a problem securing cell coverage in the immediate area." Id. Rather, there was testimony "from the public that cell coverage was available in the area in close proximity to the proposed tower," and AT&T introduced "[n]o evidence to the contrary." Id.

The Board also concluded the Proposed Facility "would have a negative impact on the aesthetics of the property for both the surrounding properties and the public at large" because a "cell tower is an aesthetically displeasing structure no matter what is done to disguise it," and it would be "located at the intersection of two busy streets and is in a prominent area of the community." Id. ¶ 10(h). It would also "negatively impact" the view of High Mountain, a "preserved treasure in the Borough" across High Mountain Road from the proposed facility. Id.

The Board also rejected AT&T's expert testimony that the Proposed Facility would not adversely impact property values in the immediate area. Id. ¶ 10(j). The Board found. Tinder's testimony "not conclusive nor persuasive," because the Borough "is a unique community, with different topographical fixtures such as mountains, valleys, fields and brooks" that was dissimilar from the area that formed the basis of Tinder's comparisons. Id. The Board also found that his data was "dated and not current," and that the market changes with time and location. Id.

Finally, the Board concluded that variances "are for land use concerns and not technological reasons that may change as technology advances," and that permitting the Proposed Facility "would be inimical to the public good and welfare and substantially impair the intent and purposes of the Borough's zoning plan and scheme." Id. ¶¶ (k)-(l).

II. PROCEDURAL HISTORY

AT&T filed this action on February 9, 2018. Compl., ECF No. 1. Defendants answered the Complaint on April 18, 2018. ECF No. 9.⁸ Plaintiff brings three claims, all against both the Borough and the Board: (1) violation of the Telecommunications Act of 1996 (the "TCA"), 47...