Daily Development for Friday, Thursday, July 12, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Here are two reports originally written by Ira Meislik, edited by moi.  They are on two aspects of the same case.  The case relates to the issue of whether public property is subject to zoning - an issue discussed on the DIRT list recently.  The case is 2005, but only recently approved for publication.  Ed.

TELECOMMUNICATIONS; CELL TOWERS; ZONING:  A municipality that selects a telecommunication’s tower site for governmental use need only act reasonably in its site selection and, if its zoning ordinance exempts its sites from the need to obtain land use approval, it need not obtain such, even if its tower will be shared by private cellular service providers.

Hills of Troy Neighborhood Association, Inc. v. Township of Parsippany-Troy Hills 392 N.J.Super. 593, 921 A.2d 1169, 2005 WL 3050995 (Law Div. 2005) , approved for publication April, 2007.

A neighborhood association sought to enjoin construction of a municipal communications and telecommunications tower to be shared by the municipality and a cellular telephone company. The Court was presented with the issue of the “extent to which a municipality is exempt from its own zoning approval ordinances, the reasonable exercise of such authority and, to the extent so exempt, the novel question of whether private telecommunication companies may share in that exemption by co-locating on a communications tower on municipal property.”

The municipality sought to replace a previous communications tower with one at the rear of its police station. The tower was to provide communications for essential municipal services. It also determined to lease a portion to cellular providers. It put the proposal out for bid, but prior to the opening of the bid, it submitted its plans for the replacement tower to a “courtesy review” by the municipality’s planning board. The cellular company was the successful bidder and it applied for, and obtained, a zoning permit for the site. Negotiations resulted in a slight lowering of the tower’s height and a slight lowering of each of the cellular company’s antennas. A neighborhood organization was involved in the process and it appeared at a municipal counsel meeting to express its concern. It argued that the tower “would be unsightly and negatively impact [] property values and the character of the neighborhood.” It also argued that the tower was not in conformity with the “Township’s

Telecommunications Ordinance.”

According to the organization, at a minimum, that the cellular companies “were required to apply for zoning or planning variance approvals and, as private companies, they [were] not exempt from the municipal telecommunications ordinance although co-located on a municipal communications tower on property leased from [the municipality].” In response, the municipality asserted that the tower was “necessary for reliable and vital police, fire, emergency and municipal services and communications, particularly given the topographical variations in [the municipality].”

A 1955 New Jersey Supreme Court decision dealt with a question as to whether a municipality is exempt from a zoning regulation in acquiring property in a residential district for an administration building or assembly hall. That Court “found that the local zoning ordinance did not prevent the municipality from[exercising] its power to determine the location of municipal facilities.”

Further, the local ordinance exempted from zoning regulations “any municipality owned, operated or controlled building, structure, facility or use, either existing or proposed.” According to the Court, that language was broad and did not purport to limit municipal activities. The validity of the ordinance was not at issue. Nonetheless, the Court needed to assure itself that the municipality was not acting as “a private entrepreneur.”

With those principles in mind, the Court held that the municipality could not be restrained from determining the location of a municipality-owned communication tower for police use, but the power to choose a location must be “reasonably exercised in response to the public need.” In that regard, some of the “[c]onsiderations to be weighed include the overall zone plan as well as the impact on surrounding properties and evaluation of alternate sites.” The extent of deviation from the zone plan is relevant. Searching for a “reasonable” alternative is important, but the reasonableness is actually to be “based on efforts by the municipality to comply with a zone plan.” Consequently, the Court found that the municipality could “construct a communications tower at its police headquarters without obtaining zoning approvals, but its construction plan [must be] subject to review to determine whether the [municipality] acted reasonably in the exercise of its authority.” The review could not

 be “in the nature of satisfying the positive and negative criteria for a use variance” because that would render “exemption from zoning regulation meaningless.”

The Court analyzed the review process that had taken place in connection with the bidding and thought that the neighborhood association and others did not have the complete opportunity to raise objections. According to the Court, even though the municipality agreed, and in good faith attempted to address the neighborhood organization’s concerns, the “discussions were abbreviated and informal meetings where experts were heard [did not leave a] public record for review preventing the Court from determining whether the municipality met the test of reasonableness.” Consequently, it ordered that the municipality conduct further public hearings.

Editor’s Comment: If the City can choose to zone and not to zone, why in the world should the court be justified in applying the level of scrutiny it did in reviewing the City’s decision?  It turned a general public policy question into what is, despite the Court’s denials, effectively a variance proceeding. 

Some may see the decision as Solomonic.  To the editor, it’s another example of judges abusing their legal review power to put themselves effectively in charge of determining all that’s right and good.  These weren’t thugs or charlatans.  They were elected City officials.  The remedy for abuse, if any, should be political. 

TELECOMMUNICATIONS; CELL TOWERS; ZONING A private telecommunications company locating its cell tower on public land pursuant to an agreement with a public agency so that the tower, at least in part, serves a public interest, is exempt from zoning regulations if the agency’s action itself is so exempt.  Hills of Troy Neighborhood Association, Inc. v. Township of Parsippany-Troy Hills 392 N.J.Super. 593, 921 A.2d 1169 (Law Div. 2005) approved for publication April, 2007 (discussed further on another item under the same heading)

The facts of this case are discussed in a separate item discussing whether the municipal agency itself is exempt from its own zoning laws in locating a privately owned telecommunications tower with collocation facilities for private internet services on municipally owned land.  The court held that there was an exemption, but that the municipality had an obligation to mak a reasonably determination of governmental need, subject to public participation.

As to the corollary issue as to whether the cellular companies, as private companies, shared any exemption, the Court realized that this was a question of first impression. Nonetheless, it felt that prior case law “and statutes provide[d] guidance in first viewing zoning regulations in terms of the use of land rather than the legal form that ownership or possessory interests may take.” Consequently, it felt that “[i]n this regard, if the use is by the municipality engaged in government business for public purposes, and it is a reasonable exercise of its authority, its exemption from zoning regulation may extend to those who join in advancing that public purpose. Status as a public enterprise alone should not control even though the private enterprise receives financial or other private benefits.” Here, the municipality “was replacing its headquarters and its communication tower for police, fire and other emergency services, a significant public purpose to be located on a major hi

ghway, ... . It sought to enter into an agreement with [two cellular companies] to construct a tower at no cost to the municipality and to obtain rent for the private antenna to be co-located on the tower.


“[T]he nature of the private enterprise itself [was] to enhance wireless communications which enhances the general welfare under The Telecommunications Act of 1996.” . . . the private telecommunication providers herein may share in the exemption from zoning regulations enjoyed by [the municipality] upon the reasonable exercise of its authority. The fact that the companies will receive a private benefit is secondary and outweighed here by the public interests served – a police headquarters and communications tower for emergency services.”

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