Daily Development for Thursday, August 1, 2002

Daily Development for Thursday, August 29, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

Note that there are two items here about the same case, dealing with quite distinct aspects.

MUNICIPAL CORPORATIONS; MUNICIPAL PROPERTY; VOLUNTEER FIRE DEPARTMENT: A volunteer fire department is not a "public entity or quasi public entity" and need not comply with laws restricting such entities in leasing or disposing of its real property.

Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Board of Adjustment, 352 N.J. Super 575, 801 A.2d 336 (App. Div. 2002).

Then, the municipality adopted amendments to its zoning ordinance "which repealed the permitted use of antennae and towers on municipal property and their conditional use in commercial and industrial zones."

The lower court held that the volunteer fire department lacked authority to lease its property to the cellular telephone companies. Essentially, the lower court held that the volunteer fire department was "a public entity or at least a quasi-public entity" and that it was required to confirm with the Local Lands and Building Law, "when leasing any property... ." As a result, the lower court found that the lease was void ab initio.

The Appellate Division disagreed, pointing out that even though a volunteer fire department serves a public purpose and might enjoy the support of public funds or property, it is not necessarily divested of its private character. The Court pointed out numerous New Jersey cases that validated the right of a volunteer fire department to enter into contracts or leases, even with profit making entities. It also rejected the line of cases cited by the lower court to support the contrary proposition, pointing out that those cases generally dealt with a volunteer fire company not having the power of eminent domain. With respect to the power of eminent domain, the Court pointed out that the power to take private property must be expressly granted by statute and that volunteer fire departments did not have that power. As a result, the Court held that volunteer fire companies are authorized to lease their property and that the proposed lease was authorized by statute, consistent with case law, and not void ab initio.

Comment: This would seem to be a problem that a creative public agency, focused on the issue, could easily avoid. It would seem possible for the agency to acquire ownership of the facilities for the volunteer department and make them available to the department, thereby establishing a "public property" characteristic and otherwise achieving the goals of giving the volunteer firefighters a place to keep their Dalmatians. If this approach is unacceptable for some reason, then one wonders whether that same reason might not explain why the fire station is in fact not "public" in character.

ZONING AND LAND USE; PROCEDURE; REVIEW; REMAND: Where it is clear to a court that a land use board is strongly opposed to granting a variance and the record is complete, the court does not need to remand the application for further hearings or a de novo review; it can decide the matter on its own because to issue a remand would be futile. : Sprint Spectrum, L.P. v. Borough of Upper Saddle River Zoning Board of Adjustment, 352 N.J. Super 575, 801 A.2d 336 (App. Div. 2002).

A volunteer fire department in a residential section of a municipality entered into a lease with cellular telephone carriers to allow a tall monopole to be built on the fire company's property. That monopole would support antennas for the cellular telephone companies as well as replace a shorter, less efficient antenna used by the fire company. The municipality's zoning board took extensive testimony which, from the record, would have appeared to provide great technical support for the cellular telephone companies' argument that there was a significant gap in coverage throughout much of the municipality. Nonetheless, the board held that coverage was adequate and refused to grant the variances that would have been needed to construct a monopole and to locate the associated communications equipment.

Part of the appeal dealt with the power of the volunteer fire department to lease the property, and this issue is discussed under the heading "Municipal Corporations; Municipal Property; Volunteer Fire Department." Another portion of the appeal, however, dealt with the validity of the refusal to grant a variance, which refusal, the parties to the lease argued, violated the preemptive provisions of the Federal Telecommunications Act (TCA)] . Their argument "focused on the preemptive effect of the [Federal Telecommunications Act when a local zoning board's refusal to allow construction of a wireless communications facility results in a significant gap in service."

In rejecting the cellular telephone companies' TCA claim, the zoning board found "that [the proponents of the variance] had not provided sufficient information to establish there is a gap in service." The lower court agreed with the board, "in this case, because here you're talking about an urban area fully covered by the land lines."

The Appellate Division was not supportive of this determination by the lower court nor was it supportive of the lower court's dismissal of a vast amount of evidence presented to the board, by the telephone companies, about a gap in service and the need for a taller antenna someplace within the municipality. It pointed out that the TCA "expressly preserves the judicial authority enjoyed by state and local government to regulate land use and zoning, but places several substantive and procedural limits upon the authority when it is exercised in relation to personal wireless service facilities."

Specifically, the TCA limits the power of local zoning authorities to make regulations that "unreasonably discriminate among providers of functionally equivalent services" or "prohibit or have the effect of prohibiting the provision of personal wireless services. ... Basically, the TCA gives local authorities the first say in determining where and how to construct [wireless communications facilities]; if, however, a local authority's actions violate the provisions of the TCA, a court has the authority to order the locality to take such steps as are necessary to grant the relief which the wireless provider had originally requested from the locality."

Although a court is required to be "deferential to the opinion of the zoning authority and careful not to substitute its own judgment for that of the local board, ... when deciding whether a zoning board's denial of an application to construct a personal wireless communications facility has the effect of prohibiting the provision of personal wireless services, the court applies a de novo review that is not necessarily limited to the record compiled by the local authority."

In this particular case, unfortunately, the lower court had only canvassed the record before the zoning board to see if the board's decision was supported by competent evidence. Therefore, because it did not examine the evidence de novo, there were no factual findings for the Appellate Division to review. On the other hand, when the Appellate Division reviewed the record of testimony and submissions to the zoning board, it did so de novo, and concluded that the companies had proven that the area to be served was not already being served by another wireless communications provider and that there was a "significant gap in the ability of remote users to access the national telephone network."

It also concluded that it would fruitless and a waste of time to require the cellular telephone companies to show that there were other alternatives for locating a monopole in the requested position. According to the Court, such a requirement "adds little to the analysis other than allowing local zoning boards to opt for a facility location that is objectively more intrusive, but which may be preferable for political or social reasons."

Essentially, the Court felt that the cellular telephone companies had presented such overwhelming and uncontroverted evidence that the zoning board's conclusion that the companies had "failed to prove the existence of a significant gap in coverage within the [municipality] was erroneous as a matter of law."

It also refused to require the cellular telephone companies to face the "difficulty of proving a negative, especially in a competitive industry where even the most basic information is considered proprietary." In the Court's mind, the evidence before the board was "sufficient to establish that no other wireless service provider could" cover the area in question.

Lastly, it was quite clear to the Court that requiring the companies to reappear before the board would "quite likely be futile," because "it was clear that the Board was strongly opposed to granting [their] application."

Finding the lower court's factual observations to be "inexplicable," the Appellate Division mused that the lower court "must have simply misunderstood the testimony before the Board." It then ordered that the variances be approved because it was unwilling to remand the matter to a board that it had shown its "reluctance to properly consider the evidence in the record" in the first place.

Comment: Obviously another big win for the telecommunications provider, and a scenario that is being repeated continuously around the country. From what we know, it is difficult to discern whether the public agency might have had other negotiating tools to moderate the impact of the telecommunications tower or to relocate it to a better location. But it appears increasingly that when one simply lies in front of the train of the Telecommunications Act, one gets flattened. Readers are encouraged to comment upon and argue with the Daily Development discussion.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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