Sprint Spectrum v. Zoning Board of Adjustment of , 606 F. App'x 669 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-2954
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SPRINT SPECTRUM, L.P.;
T MOBILE NORTHEAST LLC, f/k/a Omnipoint Communications Inc.,
A Wholly Owned Subsidiary of T-Mobile USA, Inc.
v.
THE ZONING BOARD OF ADJUSTMENT OF
THE BOROUGH OF PARAMUS NEW JERSEY,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.: 2-09-cv-04940)
District Judge: Honorable Kevin McNulty
Submitted under Third Circuit LAR 34.1(a)
March 19, 2015
Before: McKEE, Chief Judge, RENDELL and FUENTES, Circuit Judges
(Opinion filed: April 20, 2015)
O P I N I O N*
RENDELL, Circuit Judge,
The Zoning Board of Adjustment of Paramus, New Jersey (“ZBA”) appeals from
the District Court’s grant of summary judgment to Appellees Sprint, T-Mobile and
Omnipoint Communications in their challenge to the ZBA’s denial of a requested
variance to a city zoning ordinance that prohibited the construction of monopoles to fill
gaps in wireless service. Because the District Court correctly found that the ZBA’s
denial violated the Telecommunications Act of 1996 (“TCA”) and the New Jersey
Municipal Land Use Law (“MLUL”), we will affirm.
Factual Background
Appellees filed a wireless tower siting application to fill a gap in their service in
the Borough of Paramus, New Jersey. They proposed construction of a faux-tree
“monopole” in one of two sites after investigating possible locations for its placement.
Paramus had an ordinance which, among other things, prohibited the construction of
cellular monopoles, defined as “[a]n antenna structure consisting of a single pole in
commercial and residential zones.” Sprint Spectrum v. Zoning Bd. of Adjustment of the
Borough of Paramus, 21 F. Supp. 3d 381, 383 (D.N.J. 2014) (internal quotation marks
omitted). The ordinance also stated, however, that: “[t]he purpose of these
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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regulations . . . is to: . . . [e]ncourage users of monopoles and antennas to locate them, to
the extent possible, in areas where the adverse impact on the residential community is
minimal, particularly to avoid adverse visual impacts upon residential dwellings.” (App.
1305) (emphasis added).
The TCA and MLUL
The TCA expressly preserves the authority of state and local governments to
regulate land use and zoning, but places several substantive and procedural limits upon
that authority when exercised in relation to personal wireless service facilities. APT
Pittsburgh Ltd. v. Penn Twp. Butler Cnty. of Pennsylvania, 196 F.3d 469, 473 (3d Cir.
1999). One such substantive requirement is section 332(c)(7)(B) of the TCA, which
states:
(i) The regulation of the placement, construction, and modification of
personal wireless service facilities by any State or local government or
instrumentality thereof -- . . .
(II) shall not prohibit or have the effect of prohibiting the provision of
personal wireless services.
47 U.S.C. § 332(c)(7)(B). A state or local government has effectively prohibited the
provision of wireless services where a carrier has demonstrated that (1) its facility will fill
a significant gap in service, and (2) the manner in which it proposes to fill the significant
gap in service is the least intrusive on the values that the denial sought to serve. APT
Pittsburgh Ltd., 196 F.3d at 480. That is, “[a] local government may reject an application
for construction of a wireless service facility in an under-served area without thereby
prohibiting personal wireless services if the service gap can be closed by less intrusive
means.” Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999). This
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requires a showing that a good faith effort has been made to evaluate less intrusive
alternatives, which includes considerations of alternative sites, alternative tower designs,
placement of antenna on existing structures, and “alternative system designs.” APT
Pittsburgh Ltd., 196 F.3d at 480. The statutory bar against regulatory prohibition of
wireless services is absolute, and does not anticipate deference to local findings. Cellular
Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 71 (3d
Cir. 1999). Whether a state or local government’s regulation violates the effective
prohibition provision of the TCA is reviewed de novo, and is not limited to the record
compiled by the state or local authority. APT Pittsburgh Ltd., 196 F.3d at 475.
The TCA also places a second, procedural requirement on states and local
governments in that same section:
(iii) Any 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). This procedural protection applies to determinations of
factual issues made by state or local authorities when they apply state and local zoning
law. APT Pittsburgh Ltd., 196 F.3d at 474. This subsection applies to decisions made
solely on the basis of the factual record before the agency and are the subject of
deferential substantial evidence review. Id. Substantial evidence means “such evidence
as a reasonable mind might accept as adequate to support a conclusion.” Ho-Ho-Kus,
197 F.3d at 71. If the record contains conflicting evidence, the fact-finder must
adequately explain its reasons for rejecting or discrediting competent evidence. See
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Benton v. Bowen, 820 F.2d 85, 88 (3d Cir. 1987). The reviewing court’s task is to
determine whether the decision, as guided by local law, is supported by substantial
evidence. Ho-Ho-Kus, 197 F.3d at 72 (citing Omnipoint Corp. v. Zoning Hearing Bd. of
Pine Grove Twp., 181 F.3d 403, 408 (3d Cir. 1999)). Therefore, “[t]he TCA itself does
not provide the legal basis to deny an application to construct a personal wireless facility.
That authority must be found in state or local law.” Willoth, 176 F.3d at 644.
Under New Jersey law, zoning boards of adjustment may grant variances to local
ordinances. See N.J.S.A. § 40:55D-70. A decision of a zoning board may be set aside
only when it is “arbitrary, capricious or unreasonable,” but “[s]o long as the power exists
to do the act complained of and there is substantial evidence to support it, the judicial
branch of the government cannot interfere.” Medici v. BPR Co., 526 A.2d 109, 116 (N.J.
1987). The New Jersey MLUL requires that “[l]ocal zoning officials . . . weigh the
positive and negative factors associated with a requested zoning variance and determine
whether, on balance, those factors weigh in favor of granting or rejecting the request.”
Ho-Ho Kus, 197 F.3d at 72. “[T]he reviewing court’s task is to determine whether the
findings of local officials concerning the positive and negative factors, and their relative
weight, is supported by substantial evidence.” Id. Thus, both federal and New Jersey
law employ the substantial evidence standard.
Procedural History
Appellees applied to the ZBA for a variance to the ordinance in order to build the
proposed monopole. The ZBA held seventeen public hearings on the potential impact of
the monopole, hearing the views of experts on both sides, as well as possible alternatives.
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Rhoan Gordon, a radio frequency engineer, testified that the only alternative to a
monopole would involve the utilization of short structures to satisfy the coverage gap,
which would require at least a dozen such structures, and would not be a feasible design
as it would require affixing “a huge box” on each such structure.
Sprint, 21 F. Supp. 3d at 384. A member of the public then inquired as to whether a
Distributed Antenna System (“DAS”) had been considered. DAS is a means of providing
wireless coverage without the use of tall monopoles. The ZBA’s retained expert, Ross
Sorci, a radio frequency engineer with twenty-nine years of relevant experience analyzing
coverage and propagation issues, testified that a DAS would not be feasible, for a few
reasons. While a monopole concentrates all wireless antennas onto a single tower, a DAS
“distributes” those antennas across utility poles and other existing structures throughout
the coverage area. Id. Mr. Sorci testified that a DAS system would not be feasible
because it would require the use of multiple structures and is more of a “spot solution”
for small coverage gaps, and would not be suitable for covering a large area like the one
in Paramus. Id.
Appellees’ expert Glenn Pierson, a radio frequency engineer with twenty years of
network design experience and who had designed a DAS network, testified that a DAS
was not a viable alternative for the coverage gap in Paramus because of concerns
regarding its reliability. He stated that because DAS nodes were interconnected, the
whole system could suffer an outage if there was one fallen tree, ice storm, or car that hit
a pole on which a DAS node was installed. He also testified that he was not aware of any
DAS nodes with battery backup. He raised numerous other problems with a DAS—
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namely, that because a DAS system allows only for the triangulation of a user’s location
to a thousand foot radius, first responders to an emergency would be looking for the
emergency caller’s location for a longer time, that DAS systems posed worker safety
concerns, including the potential for electromagnetic radiation exposure, and that DAS
systems are more susceptible to dropped calls. Finally, Mr. Pierson testified that there
would be various technical problems with locating multiple carriers on a single DAS
antenna, and would require three or four boxes on each to satisfy the coverage gap.
The city, unhappy with the testimony of these two experts, hired David Maxson, a
self-described “municipal wireless consultant” with no formal training regarding the
placement or construction of wireless facilities, to testify at the hearings. Id. Mr.
Maxson admitted that he is not a licensed professional engineer in New Jersey, has no
educational experience in land use planning, is not a certified urban planner, is not a
certified municipal engineer in New Jersey, and has taken just one non-graded course via
CD-ROM on cellular CDMA technology. The ZBA permitted him to testify over the
Appellees’ objections. Mr. Maxson stated that he had reviewed the land in question by
looking on Google, and websites containing photographs of the buildings in the area, and
that he had toured the area, but did not do a drive test or review the drive test data
performed by the Appellees in the coverage gap. He concluded that, contrary to what the
other experts stated, a DAS would in fact be feasible because the streets of Paramus were
“well populated with utility poles,” a DAS system could be installed to cover the wireless
gap. Id. at 385. However, Mr. Maxson agreed with Mr. Gordon that a DAS system
would require numerous antennas to be installed up and down the road to provide the
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same service as a monopole. Additionally, in response to a question about how wireless
service carriers would deal with an extended outage, Mr. Maxson testified that the use of
a small generator, set on the street and chained to a utility pole for the duration of the
power outage, would solve the problem.
After these hearings, the ZBA denied the variance because “the substantial height
of the proposed monopole and its placement within the residential neighborhood would
have a detrimental visual effect on the surrounding properties,” because Appellees “failed
to investigate other less intrusive ways of providing coverage,” and because Appellees
“did not put forth a good faith effort to explore and investigate alternative technology to
provide coverage.” Id. at 387-88. The ZBA also found that Appellees “failed to meet
their burden of showing that the benefits of the proposed improvements would
substantially outweigh any possible detriment.” Id. at 388.
Appellees appealed the ZBA’s denial to the District Court, alleging that it violated
the TCA and the MLUL. There were three different proceedings in the District Court, as
the case was transferred to different judges (for reasons not relevant on appeal). As to the
TCA, Judge Linares found that a significant gap in wireless coverage existed within the
area presented, that the monopole proposed would adequately fill the gap, and that the
Appellees had adequately considered alternative sites before arriving at the ones
proposed. He denied summary judgment as to the TCA claim, however, because he
concluded that genuine issues of material fact existed regarding the feasibility of a DAS
system as a less intrusive alternative to the monopole. With respect to the Appellees’
claim that the ZBA’s denial was not based on “substantial evidence,” Judge Linares
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found that the ZBA’s decision provided only generalized concerns regarding aesthetics,
and that its concerns around the monopole’s threat of collapse and of ice accumulation
were not realistic. He denied summary judgment to Appellees on their substantial
evidence claim as well, because he concluded that factual issues remained regarding the
feasibility of the DAS as an alternative. He noted that if a DAS is found not to be a
feasible alternative to the monopole, the ZBA’s denial based on the Appellees’ alleged
failure to investigate alternative, less intrusive means of providing coverage would not be
supported by “substantial evidence.”
Judge Salas, following limited discovery into the technical aspects of an outdoor
DAS, adhered to Judge Linares’s earlier ruling that (a) a significant gap in wireless
service exists in the area in question, (b) Appellees’ proposed facilities would fill the
coverage gap, and (c) Appellees adequately considered alternative sites for the monopole.
Like Judge Linares, Judge Salas denied summary judgment because genuine issues of
fact remained regarding the feasibility of a DAS system. As for substantial evidence, she
denied summary judgment as to Appellees, in order not to disturb Judge Linares’s ruling.
Finally, Judge McNulty held a bench trial limited to the issue of whether, for
filling the gap in service, a DAS would be a feasible, less intrusive alternative to the
proposed monopole. He heard testimony from three experts. The Appellees’ expert,
radio frequency engineer Richard Conroy, testified that to fill the coverage gap in
Paramus, a dense multi-node network DAS would be required. Because a significant
portion of the coverage gap area in Paramus consists of residential streets with dense
trees, the utility poles on which the many DAS nodes would be installed would be at risk
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of damage from falling trees, and power outages due to storms. A monopole, on the
other hand, would be relatively resistant to weather and other damage. While a monopole
would permit signal rerouting in response to a fallen utility pole, he stated, DAS systems
are typically not designed to permit such rerouting. While both systems would be
affected by a power failure, every DAS node would need its own battery backup, whereas
the monopole would only require one.
The ZBA’s proffered expert, Bruce Eisenstein, who conceded that he did not have
practical experience designing a DAS or other cellular network, nevertheless concluded
that a DAS would be feasible. While he conceded that the Appellees had conducted a
good faith analysis of whether or not a DAS would be a feasible alternative in Paramus,
he stated that qualified engineers could design a DAS system in such a way that a falling
tree on one pole would not cause an outage of the entire system. When asked if he knew
of any such DAS system currently in operation, however, he admitted that he did not. He
also conceded that a DAS system would involve rapid “handoffs” that might degrade the
reliability of service. He noted that a DAS system had successfully been set up in the
Township of Harding, New Jersey, and the Township of Lower Merion, Pennsylvania,
but admitted that his opinion as to its feasibility in Paramus was conceptual, and that his
analysis was not intended to be a design for a wireless network.
Finally, professional city planner David Karlebach testified that a monopole would
be less intrusive and have less visual impact than placing DAS equipment on multiple
utility poles. He described the design for a faux-tree monopole, and testified that while
no one would mistake the pole for an actual tree, it would have the virtue of being
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confined in a single location. A DAS, on the other hand, would not rise high above the
ground, but would create its visual impact at multiple locations throughout the service
gap area.
Judge McNulty concluded that, considering all of the evidence, the DAS was not a
feasible alternative to the monopole proposed because it would not provide “the same
level of robust, reliable coverage as a monopole under the prevailing conditions in
Paramus,” and because it had significant reliability concerns. Id. at 395. He was not
persuaded by Dr. Eisenstein’s rebuttal of Mr. Conroy’s testimony regarding the
feasibility of a DAS. Taking Judge Linares and Judge Salas’s findings that (a) there
existed a significant gap in wireless service in Paramus, (b) that the proposed monopole
would fill that gap, and (c) that Appellees had considered alternative sites for the
monopole, he added that Appellees had made a good faith effort to identify and evaluate
less intrusive alternative system designs to the monopole, and that the DAS was not such
a less intrusive, feasible alternative. Therefore, he found that the ZBA’s denial
constituted an “effective prohibition” of wireless service, in violation of §
332(c)(7)(B)(i)(II) of the TCA.
As to the issue of whether the ZBA’s denial was based on substantial evidence,
Judge McNulty noted that previous rulings in the case had narrowed the inquiry to the
question of whether the DAS was a feasible alternative to the monopole; that is, whether
or not the ZBA’s decision was supported by substantial evidence depended on the answer
to this question. Based on the record before the ZBA, Judge McNulty concluded that the
DAS was not a feasible alternative to the monopole, and therefore, denying coverage due
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to the possibility of implementing a DAS in place of a monopole was not a decision
supported by “substantial evidence.” Additionally, adhering to what Judge Linares had
concluded, Judge McNulty found that since the monopole would be very tall, but
confined to one small area, whereas the DAS would be shorter but dispersed in multiple
locations, from a visual standpoint, there was “no clear aesthetic winner.” Id. at 396.
Therefore, denial of the variance application on the basis of aesthetics was also not
supported by “substantial evidence.”
Standard of Review
On appeal from a bench trial, we review a district court’s findings of fact for clear
error, Scully v. US WATS Inc., 238 F.3d 497, 505-06 (3d Cir. 2011), and its conclusions
of law de novo, U.S. v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993). Clear error is only
present if the District Court’s findings are “completely devoid of minimum evidentiary
support displaying some hue of credibility or bears no rational relationship to the
supportive evidentiary data.” Berg Chilling Sys. v. Hull Corp., 369 F.3d 745, 754 (3d
Cir. 2004).
Discussion
1. ZBA’s decision was an “effective prohibition” on wireless service.
The District Court correctly concluded that the ZBA’s denial of the variance
requested was an “effective prohibition” under the TCA because a significant gap in
wireless coverage existed within the area presented, the monopole proposed would
adequately fill the gap, and Appellees had adequately considered alternative sites and
systems before arriving at the ones proposed. On appeal, the ZBA does not contest the
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District Court’s finding that there is a significant gap in the area where Appellees seek to
build a monopole, or that the monopole would fill that gap. The ZBA also does not
contest that Appellees considered alternative locations for the monopole. The ZBA
disputes the District Court’s finding on the feasibility of the DAS as an alternative system
to the monopole, and therefore argues that the monopole is not the least intrusive means
to fill the significant gap in wireless service that exists in Paramus.
As a preliminary matter, the ZBA’s argument that the Appellees did not conduct a
good faith investigation into the feasibility of DAS was contradicted by the ZBA’s own
expert, Mr. Eisenstein. More importantly, however, the monopole is in fact the least
intrusive means, because the DAS was found not to be a feasible system for the coverage
area in question. During the ZBA hearings, radio frequency engineers Rhoan Gordon,
Ross Sorci and Glenn Pierson all agreed that DAS was not a viable alternative to a
monopole because it raised serious reliability concerns. Only David Maxson, whose
credentials were questionable, at best, believed that a DAS would be feasible in Paramus.
During the bench trial, radio frequency engineer Richard Conroy also testified that a DAS
system raised serious reliability concerns. Professional city planner David Karlebach
testified that a monopole would be less intrusive and have less visual impact than a DAS
system. The ZBA’s proffered expert, Bruce Eisenstein, who conceded that he did not
have practical experience designing a DAS or other cellular network, testified that it
would be feasible and offered suggestions for how outages could be avoided. Taking
these views into consideration, the District Court concluded that a DAS system is
infeasible because it is more susceptible than a monopole to outages due to falling trees,
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less flexible and therefore less able to cover multiple carriers, and designed to cover a
smaller gap than required. The opinions of the experts who testified at the ZBA hearings
and the bench trial below weighed heavily against the feasibility of a DAS system in the
coverage area, particularly when considering that the experts who had actual experience
with DAS systems harbored that view. We review these factual findings for clear error,
and the ZBA has not demonstrated before us that they were “completely devoid of
minimum evidentiary support.” Berg Chilling, 369 F.3d at 754. Therefore, the District
Court correctly concluded that the ZBA’s denial of the variance was an “effective
prohibition” under the TCA.
The ZBA argues that the District Court improperly placed the burdens of proof
and persuasion on the ZBA regarding the issue of the feasibility of the DAS, and
therefore, Appellees succeeded without demonstrating that the monopole is the least
intrusive means to fill the coverage gap. This is not what the District Court did. The
feasibility of a DAS system was extensively reviewed, and rejected, as explained by the
Appellees’ experts who testified at the ZBA hearings and during the bench trial regarding
why a DAS would not work in the Paramus coverage gap. In fact, as the District Court
correctly noted, “[Appellees] 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 alternatives . . . .” Sprint, 21 F. Supp. 3d at 397 (internal quotation marks
omitted). A good faith effort was made to consider DAS, and it was rejected for valid
reasons.
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2. The ZBA’s decision was not supported by “substantial evidence.”
The District Court correctly found that the ZBA’s decision to deny the variance
was not based on “substantial evidence.” The ZBA denied the variance application due
to the negative criteria presented by the construction of the monopole: it believed that the
Appellees had failed to investigate less intrusive ways of providing coverage—namely, a
DAS system—and it believed that the monopole would have a detrimental visual effect
on the surrounding properties in the neighborhood.
As to the feasibility of the DAS, Judge McNulty evaluated the testimony in the
ZBA hearing record from Mr. Gordon and Mr. Sorci, both of whom agreed that the DAS
was not a feasible solution for the coverage gap in Paramus. Specifically, he rejected the
ZBA’s conclusion that this alternative had not been explored. Mr. Maxson’s opinion that
a DAS would be feasible was greatly suspect, given his questionable credentials and lack
of expertise to evaluate the feasibility of a DAS solution. It is clear to us that, the views
expressed in the hearings alone demonstrated that a DAS was not a feasible alternative to
the monopole.
The ZBA argues that the bench trial improperly influenced Judge McNulty’s
conclusion that a DAS is not feasible. The ZBA argues that because a “substantial
evidence” claim is reviewed for whether the evidence in the record before the ZBA was
sufficient, and because Judges Linares and Judge Salas denied summary judgment to
Appellees based on questions of fact that remained on the feasibility of the DAS, Judge
McNulty’s conclusion that the ZBA’s decision was not based on “substantial evidence”
was error. We do not agree that the bench trial improperly influenced the District Court’s
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conclusion on this matter. As Judge McNulty stated, “[t]he expert testimony in this Court
has educated me as to the technical issues, and in that way has influenced my conclusions
as to the meaning of the evidence the Board heard, as well as my conclusions as to what
the presentation may have lacked.” Sprint, 21 F. Supp. 3d at 398 (emphasis added).
Additionally, the ZBA’s reliance on the visual impact of the monopole does not
represent “substantial evidence” to support the denial of the variance because, as Judge
McNulty noted, there was “no clear aesthetic winner” between a DAS and the proposed
monopole. Id. at 396. The ZBA’s denial of the variance was likewise unsupported by
the New Jersey MLUL, which requires that such a denial be supported by substantial
evidence.
The ZBA next argues that the substantial evidence and summary judgment
standards are the same; that is, because Judges Linares and Judge Salas denied summary
judgment to Appellees below on the issue of whether the DAS was a feasible alternative
to the monopole, this necessitates finding that the ZBA’s decision to deny the variance
based on the possibility of a DAS was based on “substantial evidence.” However, this is
simply not the case. While the substantial evidence standard requires weighing evidence
on the merits of a claim, the summary judgment standard does not. As to substantial
evidence, we have stated that “if the record as a whole contains conflicting evidence, the
fact-finder must adequately explain its reasons for rejecting or discrediting competent
evidence.” Ho-Ho-Kus, 197 F.3d at 71-72. Conflicting evidence on material facts makes
summary judgment inappropriate.
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Finally, as the ZBA never brought up their argument that a federal court injunction
requiring it to grant a variance to Appellees would result in unconstitutional
commandeering before the District Court, we consider it waived.1
Conclusion
Because the ZBA’s denial of Appellees’ zoning variance violates the TCA’s
“effective prohibition” language and was not based on “substantial evidence” as required
by both the TCA and MLUL, we affirm the District Court.
1
Even if we were to consider the argument, however, it is unavailing. We have held that
the TCA is a valid congressional exercise of the Commerce Clause power.
MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir. 2001). Therefore there
is no commandeering issue here.
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