Agenda - Planning Commission - 08/07/2014

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July 10, 2014 I Volume 8 I Issue 13 Zoning Bulletin telecommunications carriers adequately considered technological alterna- tives to a monopole, such that a zoning board's denial of a permit to the car- riers, based on a failure to consider alternatives, constituted an effective pro- hibition of wireless service in violation of the federal Telecommunications Act, 47 U.S.C.A. § 337(c)(7)(B)(iii). The Background/Facts: Sprint Spectrum L.P. and T-Mobile Northeast LLC (collectively, the "Carriers") sought to construct a wireless com- munications facility in the Borough of Paramus, New Jersey (the "Borough"). The Carriers proposed the wireless communications facility in order to fill significant gaps in their wireless coverage. They proposed the facility at either of two sites: the "Ambulance Corps" site and the "Church of Nazarene" site, both of which were zoned "residential." More specifi- cally, at each of these sites, the Carriers proposed building a 120- to 125- foot faux -tree wireless communications facility, known as a monopole. The Borough's zoning ordinance specifically prohibited cellular mono- poles in residential zones. Accordingly, the carriers filed applications for zoning variances and approval to construct the proposed monopoles. Each application requested variances pursuant to N.J.S.A. 40:55D-70(d) with re- spect to: (a) permitted use, because the telecommunications facilities were specifically prohibited in residential zones; and (b) maximum building height, because the proposed structures exceeded the 32-foot maximum height permitted. Both applications further requested variances to: (a) light- ing; (b) minimum front/rear setback; (c) minimum setback from a residen- tial zone; and (d) minimum setback from property line for an equipment building. Ultimately, the Borough's Zoning Board of Adjustment ("ZBA") denied the Carriers' variance applications. The Carriers filed an action in federal district court. Among other things, they alleged that the ZBA violated the federal Telecommunications Act, 47 U.S.C.A. § 332(c)(7)(B)(i)(II). The Telecommunications Act provides that local governments cannot "prohibit or have the effect of prohibiting the pro- vision of personal wireless services." The Carriers contended that the ZBA's denial of the variance requests was an effective prohibition of service in violation of the Telecommunications Act. They argued that the ZBA denied the applications to fill a significant gap in wireless service despite the lack of any feasible, available, less -intrusive means to fill the coverage gap. The ZBA maintained that the Carriers had failed to adequately explore a viable alternative to the proposed monopoles: a Distributed Antenna System ("DAS"). A DAS. provides wireless coverage without the use of tall monopoles; instead, a DAS "distributes" antennas across utility poles and other existing structures throughout the coverage area. The Carriers motioned for summary judgment, asserting that there were no material issues of fact in dispute and asking the court to issue a decision in their favor on the law alone. A judge found: (1) that a significant gap in the Carriers' wireless cover- age existed within the subject area; (2) that either of the Carriers' proposed 8 © 2014 Thomson Reuters