                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-2005

Cellular Telephone v. Zoning Bd Adjustment
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3221




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                                                           NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                 No. 04-3221


       CELLULAR TELEPHONE WIRELESS, d/b/a *AT&T WIRELESS

                                      v.

   THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BERGEN

                                  Appellant

         *(Amended in accordance with the Clerks’ Order dated 9/2/04)


                On Appeal from the United States District Court
                        for the District of New Jersey
                            (D.C. No. 02-cv-05972)
                  District Judge: Honorable John C. Lifland




                          Argued April 22, 2005
         Before: ROTH, FUENTES, and STAPLETON, Circuit Judges.

                           (Filed: August 1, 2005)

GERALD J. MONAHAN (ARGUED)
322 48th Street
Union City, NJ 07087
      Attorney for Appellant

KENNETH J. WILBUR (ARGUED)
Drinker Biddle & Reath LLP
500 Campus Drive
Florham Park, NJ 07932-1047
      Attorney for Appellee
                                OPINION OF THE COURT




FUENTES, Circuit Judge.

       This appeal involves the interaction between the (federal) Telecommunications

Act of 1996 (TCA) and New Jersey state zoning laws. It presents the question whether

the North Bergen zoning board’s decision to deny AT&T’s application for a variance to

allow the company to install microcell equipment on an already nonconforming

commercial building in a residential area is supported by substantial evidence, as required

by federal law. The District Court found that substantial evidence supported the board’s

finding that AT&T failed to show that the building was particularly suited for the use, as

required by New Jersey law. However, it went on to find that such a showing was not

necessary because the New Jersey Supreme Court would find that microcell installations

are inherently beneficial uses, obviating the need to show particular suitability.

Accordingly, the District Court granted summary judgment in favor of AT&T on its claim

that the board’s decision is not supported by substantial evidence. We will affirm the

District Court because we find that AT&T carried its burden of showing particular

suitability. We do not reach the inherently beneficial use question that formed the basis

of the District Court’s decision.

                                              I.

                                             -2-
       As we write for the parties, who are familiar with the facts of the case, we will

only offer a brief summary. Cellular Telephone Company d/b/a AT&T Wireless

(“AT&T”) provides wireless telecommunications services, and is licensed to do so by the

FCC. In order to ameliorate a coverage problem, AT&T sought a variance from the

North Bergen zoning board (the “Board”) to place a “microcell” installation–two small

cabinets and two small antennas–on the roof of an office building (the Zepter Building or

the “Building”) in a residential zone.1 The Building is already a nonconforming use and

sits next to a large gas station. It is located in an ideal and unique spot that allows the

small “microcell” equipment to fix the coverage problem.

       At the hearing before the Board, AT&T had several experts testify to the idealness

of the location and the minor intrusiveness of the equipment. However, one of the

experts testified that it might be possible to use two installations in nonresidential zones at

the ends of the gap pointing in to solve the problem, but that no alternative site feasibility

study had been done.

       The Board denied the permit, finding that AT&T failed to demonstrate that the

proposed site was particularly suited for the use, because AT&T did not investigate

alternative nonresidential locations for the equipment. Additionally, the Board found that


   1
    It became clear at oral argument that the microcell was actually installed after the
District Court’s decision. However its continued presence is conditional on our
resolution of this case. Accordingly, there is no mootness problem. Also,
notwithstanding the installation of the equipment, we refer to the variance as a proposed
variance in this opinion as we believe that it allows for a more natural reading.

                                              -3-
the equipment would be an unnecessary and unacceptable eyesore for the objecting

condominium owners.

       AT&T filed suit in the District Court, claiming, among other things, that the

decision was not supported by substantial evidence, as required by the TCA. AT&T

moved for summary judgment on this claim. The District Court held that the Board’s first

finding regarding the suitability of the location was supported by substantial evidence

because AT&T failed to explore alternatives even though it conceded that they exist. As

to the “eyesore” finding, the District Court found that substantial evidence was lacking.

However, after supplemental briefing, the District Court predicted that the New Jersey

Supreme Court would find that the mounting of personal wireless facilities on existing

structures is an inherently beneficial use, thereby obviating the need to show that the site

was particularly suited to the use. Because of this ruling, AT&T was awarded the relief

that it sought (the reversal of the Board’s rejection). The Board appeals.

       The Board argues that the District Court erred in concluding that the New Jersey

Supreme Court would confer inherently beneficial use status on building-mounted

microcells. AT&T argues that the District Court erred in concluding that AT&T failed to

demonstrate particular suitability.

       The District Court had federal question jurisdiction over this case pursuant to 28

U.S.C. § 1331, because 47 U.S.C. § 332(c)(7)(B)(iii) subjects state and local zoning board

decisions to federal court review. This Court has jurisdiction over the final order of the



                                             -4-
District Court under 28 U.S.C. § 1291.

                                                II.

       The Telecommunications Act expressly preserves local zoning authority over the

placement, construction, and modification of personal wireless service facilities. See 47

U.S.C. § 332(c)(7)(A). However, one provision provides that “[a]ny 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.” 47 U.S.C. § 332(c)(7)(B)(iii). “Substantial

evidence ‘does not mean a large or considerable amount of evidence, but rather such

evidence as a reasonable mind might accept as adequate to support a conclusion.’” See

Cellular Tel. Co. v. Zoning Bd. of Adjustment (Ho-Ho-Kus), 197 F.3d 64, 71 (3d Cir.

1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quotations omitted)).2

       “In the context of § 332(c)(7)(B)(iii), the decision process itself is governed by

applicable state and local zoning laws.” Id. at 72. Thus, our task “is to determine

whether the [zoning board’s] decision, as guided by local law, is supported by substantial

evidence.” Id. “Under New Jersey law, local zoning officials must weigh the positive

and negative factors associated with a requested zoning variance and determine whether,



   2
     This deferential standard is similar to the standard of review used by the New Jersey courts
with respect to zoning board determinations, under which the “courts will defer to a decision if it
is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an
abuse of discretion.” Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 704
A.2d 1271, 1280 (N.J. 1998).

                                                -5-
on balance, those factors weigh in favor of granting or rejecting the request.” Id. “If the

proposed use is deemed ‘inherently beneficial,’ the positive criteria requirement is

automatically satisfied.” Id. Otherwise, the party seeking the variance must show that

“the proposed site is particularly suitable for the proposed use.” 3 Coventry Square, Inc. v.

Westwood Zoning Bd. of Adjustment, 650 A.2d 340, 345 (N.J. 1994). With respect to

the negative criteria, a court must balance the positive criteria against the negative impact

of the use, “‘and determine whether, on balance, the grant of the variance would cause a

substantial detriment to the public good.’” Smart, 704 A.2d at 1283 (quoting Sica v. Bd.

of Adjustment, 603 A.2d 30, 37 (N.J. 1992)).

                                               III.

       The District Court held that the Board’s finding that AT&T had not shown

particular suitability was supported by substantial evidence. We will consider AT&T’s

challenge to this conclusion first. The particularly suited use factor requires a finding that


   3
     In lieu of particular suitability, an applicant can show “undue hardship,” which requires a
showing that the property cannot reasonably be developed with a conforming use. See Medici v.
BPR Co., 526 A.2d 109, 110 n.1 (N.J. 1987). There is no claim of undue hardship in this case.
    In addition to particular suitability, an applicant may also need to show that the use promotes
the general welfare. New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of
Adjustment (South Plainfield), 733 A.2d 442, 449 (N.J. 1999) (“The positive criteria test whether
a proposed use promotes the general welfare and is particularly suited for the site.” (emphasis
added)). But see id. at 445 (“Generally speaking, ‘to satisfy the positive criteria, an applicant
must prove that ‘the use promotes the general welfare because the proposed site is particularly
suitable for the proposed use.’” (quoting Smart,704 A.2d at 1278 (quotation omitted))). In any
case, “[w]ith telecommunications towers, an FCC license generally establishes that the use
promotes the general welfare.” Id. at 449. Accordingly, there appears to be no question that the
microcell installation here similarly serves the general welfare insofar as that determination is
separate from particular suitability.

                                               -6-
the general welfare is served because the use is peculiarly fitted to the specific location

for which the variance is sought in order to be satisfied. See Kohl v. Mayor of Fair Lawn,

234 A.2d 385, 391 (1967). Generally, a showing of need plus reasons why the particular

site is especially appropriate satisfies the requirement. See, e.g., South Plainfield, 733

A.2d at 450. However, an applicant need not show that the proposed site is the only site

suitable for the use. Medici v. BPR Co., 526 A.2d 109, 112 n.4 (N.J. 1987).4

       Here, AT&T demonstrated a need for the facility at that location, (DA 31), and

therefore the case turns on whether it showed reasons why the Building was an especially

appropriate site for the use. This issue centers around the extent to which a party

requesting a variance for cellular service equipment must show the inadequacy of other

sites. The Board found that AT&T had failed to consider alternative sites in

nonresidentially zoned areas. The dispute arose from the testimony of one of AT&T’s

experts, who, when asked whether two nonresidential installations could be used to

achieve the same coverage, stated that it would be “possible if [AT&T] had a cell site, say

to the south pointing north and a cell site to the north pointing south to fill the [service]

gap.” (Appendix of Appellee (PA) 65-66.) However, he also testified that the Building



   4
     Although a somewhat recent Appellate Division case could be read to support the idea that
all alternatives must be ruled out, subsequent Appellate Division cases have explicitly retreated
from such a position. Compare N.Y. SMSA Ltd. P’Ship v. Bd. of Adjustment, 734 A.2d 817,
820-21 (N.J. Super. Ct. App. Div. 1999), with Ocean County Cellular Tel. Co. v. Township
of Lakewood Bd. of Adjustment (Lakewood), 800 A.2d 891, 899-900 (N.J. Super. Ct.
App. Div. 2002), and Sprint Spectrum, Ltd. P’Ship v. Zoning Bd. of Adjustment (Leonia), 823
A.2d 87, 98 (N.J. Super. Ct. App. Div. 2003)).

                                               -7-
was “the best candidate in the area.” Id. at 40.

       The concept of particular suitability appears to elude precise definition. It is an

extremely fact-bound inquiry, which does not lend itself to concrete rules.5 There are a

number of cases in which New Jersey courts have overturned denials of variance

applications with respect to wireless communication facilities. See, e.g., N.Y. SMSA v.

Bd. of Adjustment (Weehawken), 851 A.2d 110, 119-20 (N.J. Super. Ct. App. Div.

2004); Leonia, 823 A.2d 87; Lakewood, 800 A.2d 891. We look to these cases for

guidance.

       In Lakewood, Comcast sought “to erect twelve antenna[s] on an existing

multi-story building in Lakewood, Ocean County.” 800 A.2d at 893. “According to its

written resolution, the Board denied [the] application because of: (1) the ‘detrimental

visual impact’ the antenna[s] will have; (2) the public’s ‘fear and apprehensions’ about

radio frequency (RF) emissions; and (3) the existence of other suitable locations for the

proposed facility.” Id. The building was “located in the residential, office-professional

zone (ROP), or hotel district, which has among its principle uses professional offices,

churches and other houses of worship, and residential dwellings.” Id. at 894. The Court


   5
    We see no error in the District Court’s general reasoning that a zoning board plausibly
could reject a wireless coverage variance application with respect to a residential zone
when it finds that a possibility exists to provide the same coverage using two installations
in nonresidential zones. The two recent opinions AT&T cites to suggest that one site is
always better than two are both unpublished (and of no precedential value) and are more
nuanced than that. As noted above, we believe that the particular suitability question is a
fact-intensive one, requiring consideration of the particulars of any given situation.

                                             -8-
found that Comcast’s FCC license established that use promotes the general welfare. Id.

at 897. The Court also found that “Comcast presented compelling evidence

demonstrating that its site was particularly suited for its proposed” use because it was

located in a mixed-use zone and it was “utilizing an existing structure, rather than

constructing a monopole or lattice tower.” Id. at 898. The Court was troubled with the

board’s rejection of the application based on the availability of (unspecified) better

locations, as it could create a “daunting” and possibly “impossible” burden of disproving

the possible existence of better sites. Id. at 899. Accordingly, the Court reversed the

board’s positive criteria findings. After rejecting the negative criteria findings, the Court

reversed the board’s denial of the variance application.

       In Leonia, Sprint “applied to the [zoning board] for a variance to affix nine small

antennas to the roof of an existing five-story apartment building located in a residential

zone.” 823 A.2d at 89. The Board denied the application, but the Law Division reversed,

and the board appealed. Id. The building was “located partially within the A-4 Single

Family Residential zoning district, and partially within the B Multiple Family Residential

zoning district.” Id. In explaining why the location was ideal, Sprint’s expert noted that

“using two separate antennas in other locations would be insufficient to fill the gap in

coverage.” Id. at 91. The Board’s expert testified that there was a potential two-

installation solution, but that it was inferior to Sprint’s proposed solution. Id. at 97.

Noting that the facts of the case had a striking similarity to those in Lakewood, the Court



                                              -9-
labeled the board’s suggestion that better sites exist “conjecture” and reversed the finding

that the site was not particularly suited to the use. Id. at 98. The Court also rejected the

negative criteria finding, and affirmed the Law Division’s reversal of the board. Id. at

100.

       In Weehawken, the most recent case of note, the Appellate Division was faced

with a situation in which Verizon applied for permission to install rooftop microcell

equipment, but the Board denied the application because “the proposal did not satisfy the

positive or negative criteria for the grant of a use variance.” Id. at 112. Specifically,

Verizon “chose a five-story, residential apartment building at 117 Parkview Avenue as

the ideal location for [a] new cell site” and “proposed to place fifteen antennas, arranged

in three sets of five, on the building’s roof.” Id. at 114. Verizon’s engineer, Dominic

Villecco, testified that the site was especially suitable because “it gave [Verizon] the

ability to see all the problem areas that we have” and, in response to a query as to whether

a particular water tower would suffice, explained why it would not. Id. Villecco

“concluded that there was no other potential location that would solve the coverage

problem as effectively as the proposed site.” Id. “The Board presented no experts on its

own behalf.” Id. at 115. Like here, on appeal, the zoning board did not attempt to rely on

the negative criteria, addressing only the issue of particular suitability. Id. at 121. The

Court stressed the factual similarity between the case and Lakewood and Leonia, and

reversed the board’s rejection of the variance application.



                                             -10-
       It is quite apparent from the cases discussed above that the New Jersey appellate

courts, when applying the deferential substantial-evidence-like state standard, have

reversed zoning board determinations when the courts are satisfied that a showing of

particular suitability has been made. In Lakewood, the positive criteria were satisfied

because “[(1)] the building was located in the center of the area which was experiencing

blocked cellular phone calls; [(2)] the zone included a mixture of uses, including

professional offices, schools, houses of worship, and both single and multi-family

dwellings; and [(3)] the carrier intended to utilize an existing structure, rather than

construct a monopole or tower.” Leonia, 823 A.2d at 96 (describing the Lakewood

decision). Here, (1) one of AT&T’s experts testified that the Building was “the best

candidate in the area,” (PA 40), as it was located in the center of the coverage gap; (2)

although the zone is residential, there are nonconforming uses, including a gas station and

the Zepter building itself, where the microcell would be placed; and (3) AT&T intends to

utilize an existing structure, instead of erecting a new monopole or tower. The Board

does not dispute any of these facts, nor does it attempt to discredit the witnesses that

testified to them. Also, as in the cases above, the Board did not identify any particular

sites that would be superior to the Building 6 or make findings that the experts were not



   6
    Of course, the burden of showing particular suitability is on the applicant. See Smart, 704
A.2d at 1278. However, where, as here, an applicant demonstrates the suitability of its chosen
location and its belief that no other more-suitable site exists through testimony before the board,
the onus, in a sense, shifts to the zoning board (or other objectors) to show why the location is
unsuitable in comparison to other alternatives.

                                               -11-
credible. Thus, there are compelling reasons as to why the Building is particularly suited

for the use (especially the nonresidential nature of the buildings in the immediate area in

which the microcell is to be located). The fact that an expert admitted that it is

conceivable that nonresidential sites exist on both sides of the gap that would allow

coverage of the gap through two installations does not render the Building unsuited for

the proposed use.

       We conclude that the Board’s finding that AT&T failed to satisfy the positive

criteria is unsupported by substantial evidence in the record. The Board has not appealed

the District Court’s determination that the Board’s negative criteria finding is

unsupported by substantial evidence. Accordingly, the Board’s denial of AT&T

application for a variance cannot stand. Because of this determination, we need not reach

the issue of whether the microcell constitutes an inherently beneficial use.

                                             IV.

       For the reasons discussed above, we will affirm the order of the District Court.




                                            -12-
