Agenda - Planning Commission - 01/04/2000

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Page 6 -- December 24, 1999 z,go visit the site approximately once a month, but it would otherwise be unmanned. The zoning official denied the application. AT&T amended its application, but the application was again denied. AT&T brought its original and amended applications before the Zoning Board of Adjustment. After two-and-a-half-years and 44 public hearings, the board voted to deny the application. The board memorialized its decision in a 36-page resolution which stated, "The public interest which will be served by the proposed monopole is not substantial, as the quality of cellular service already being provided within the Borough of Ho-Ho-Kus is adequate... The public good being served is not compelling. Due to the nature of the structure, no conditions can be imposed that would reduce the impact, and on balance the negative considerations outweigh the benefits to be obtained." AT&T sued, and the court decided in favor of the borough without a trial. The court stated the board's denial did not have the effect of prohibiting per- sonal wireless services, was supported by substantial evidence, and was based on a proper application of state zoning laws. AT&T appealed. AT&T argued local authorities were barred from consid- ering quality of service issues when deciding whether to permit wireless com- munications facilities. It also claimed that the denial of the variances had the effect of prohibiting wireless communk:ation services because there were sig- ni/icant gaps in service. DECISION: Affirmed in part, and reversed and returned to the lower court in part. The local officials could consider the quality of wireless service already available. However, because there was evidence of significant gaps in service, the issue of whether the denial had the effect of prohibiting wireless communi- cation services had to go to trial. Local officials must, at a minimum, consider whether wireless service ex- ists before determining whether rejecting a proposed wireless facility would have the effect of prohibiting such service. Decisions to grant or deny vari- ances from local zoning ordinances generally require local officials to balance the interests affected by the decision. A finding that existing service was rela- tively poor could tip the scale in favor of granting a variance that might other- wise be denied. So, local authorities were not barred from considering existing service quality. However, in assessing overall quality, the Board never specifically deter- mined whether there were gaps in the current service. Local officials must ensure that neither their general policies nor their individual decisions prohib- ited or had the effect of prohibiting wireless services. This meant more than simply ensuring that personal wireless services were available somewhere within the relevant jurisdiction. Local zoning policies and decisions had the'effect of prohibiting wireless communication services if they resulted in "significant gaps" in the availability