Agenda - Planning Commission - 08/07/2014

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Zoning Bulletin July 10, 2014 Volume 8 1 Issue 13 monopole facilities would adequately fill the coverage gap; and (3) that the Carriers had adequately considered alternative sites before arriving at the proposed sites. However, the judge denied summary judgment, finding that "genuine issues of material fact exist[ed] as to the feasibility of the DAS as a less intrusive alternative to [the Carriers'] proposed monopole." The questions of whether the DAS was a feasible, less intrusive alterna- tive to the proposed monopole and thus whether the ZBA properly denied the Carriers' variance requests went to trial. DECISION: Judgment for Carriers. The United States District Court, District of New Jersey, held that the DAS was not a feasible alternative to the proposed monopole, and thus that the ZBA violated the Telecommunications Act in denying the Carriers their requested variances. After considering expert testimony on the issue, the court concluded that DAS would not offer comparable wireless service when measured against the coverage that could be provided by the proposed monopoles. The court found that DAS "has significant reliability concerns associated with its deployment on utility poles, its small coverage areas per node, and its vulnerability to disruption." The court explained that "[t]he Carriers do not bear the burden of proving that every potential alternative, no matter how speculative, is unavailable. The proper inquiry for an effective prohibition claim is whether 'a good faith effort has been made to identify and evaluate less intrusive alterna- tives, e.g., that the provider has considered less sensitive sites, alternative system designs, alternative tower designs, placement of antennae on exist- ing structures, etc.' " Here, the court found that "good faith analysis [was] apparent from the face of the record before the [ZBA]." Accordingly, the court found that the ZBA's denial of the requested zoning variances consti- tuted an effective prohibition of wireless service in violation of the Telecom- munications Act, 47 U.S.C.A. § 332(c)(7)(B)(i)(II). See also: APT Pittsburgh Ltd. Partnership v. Penn Tp. Butler County of Pennsylvania, 196 F.3d 469 (3d Cir. 1999) (rejected by, Independent Wire- less One Corp. v. Town of Charlotte, 242 F. Stipp. 2d 409 (D. Vt. 2003)). Case Note: In reaching its decision, the Court had found that neither the DAS nor the monopole would be superior from an aesthetic and planning point of view. The monopole would be visible from a relatively large number of residences but was physically close to only a limited number. The DAS network would require additional boxes on utility poles near residents' homes and thus have an impact on individual homeown- ers' views and local streetscapes. The court did note that the "monopole may have the edge in that it meets the criteria of collocation and minimizing the number of facilities." @2014 Thomson Reuters 9