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Lakewood residents who have been fighting against a Zoning Board approval of a cell tower facility on Clifton Avenue received a major blow as Superior Court Judge Francis Hodgson ruled Friday that health and environment concerns may not be used as a basis to oppose cell tower applications, beyond whether the tower complies with current FCC requirements.

In Fall of 2021, acknowledging a lack of adequate 4G signal coverage and system capacity in Downtown Lakewood, and acknowledging that this falls short of an FCC mandate that each cell carrier must provide “substantial service” in its licensed service areas or risk having their license revoked, Verizon Wireless embarked on plans to install a cell tower in Downtown Lakewood.

Instead of building an entire tower all the way from the ground up, Verizon's representatives chose to place a smaller cell tower "facility" atop the Senior Citizen resident building on Clifton Avenue and 5th Street as the height of that building would preclude the need to build an actual tower. The building is owned by Moshe Eichler and he granted permission to Verizon to install the tower facility they envisioned.

Lakewood Township's zoning ordinances prohibit wireless communication facilities in most zoning districts in the Township, and therefore, Verizon submitted an application to the Zoning Board requesting the prerequisite Use Variance which would permit a cell tower "facility" in this location.

At the Zoning Board meeting held in March, Morristown Attorney Richard Schneider representing Verizon represented that the federal Telecommunications Act of 1996 includes a preemption clause, which basically says no state or municipality, including the Lakewood Zoning Board can regulate the “placement, construction, and modification of personal wireless service facilities on the basis of the purported environmental effects of radio frequency emissions” as long as the facility is operating within the Federal Communications Commission’s regulations.

Mr. Schneider then called Radio Frequency Expert David Stern who presented expert testimony in accordance with a Radio Frequency Emission Study he conducted which established that the proposed wireless communication facility would indeed comply with the FCC regulations in regard to radio frequency exposure limits.

Numerous neighbors, without an attorney representing them, attended the Zoning Board hearing and spoke up in opposition to the granting of the Use Variance which would enable installation of the cell tower, citing health concerns due to the proximity of the proposed tower to their residential homes.

[As previously reported here and here on FAA News, the BMG Roshei Yeshiva, the Satmar Dayan Rabbi Klein, as well as BMG Senior Posek Rabbi Forcheimer signed letters opposing the installation of this cell tower.]

The neighbors attempted to distribute to the Board articles regarding an August 13, 2021 Federal appeals court opinion in a case known as Environmental Health Trust vs FCC and USA which found that the FCC, which has not updated their guidelines regarding the standards for cell towers since 1996, has failed to adequately respond to credible evidence, such as from the American Academy of Pediatrics, that radio frequency radiation exposure, even at levels lower that those permitted under the existing guidelines, can have negative health impacts on children.

The Zoning Board refused to look at the federal court opinion after the Board Attorney asserted the articles were irrelevant because "he is sure there are other articles that say differently."

A neighbor implored the Board to at least table the application to a future date to permit him time to retain a professional to better present their concerns to the Zoning Board.

Chairman Abe Halberstam brushed him off, saying he could "sue the Township and go to Court."

The Board then voted to approve the Use Variance application.

Subsequently, in April, as first reported here on FAA News, the neighbors retained Teaneck Attorney Jan Meyer who filed a Complaint in Lieu of Prerogative Writs in Superior Court seeking to overturn the Zoning Board's decision, arguing in the First Count that "the Board's refusal to adjourn the hearing, despite multiple objectors requesting the opportunity to secure an expert witness was contrary to applicable law; and was arbitrary, capricious, unreasonable and otherwise wrongful against the neighbors."

The Second Count of the lawsuit asserts "the Board failed to consider evidence regarding the ill effects of cell phone towers, relying on the FCC standards. Given that the Federal Court has determined that the FCC was arbitrary and capricious in failing to support their conclusion to not update their wildly out of date standards, the impact of cell towers should have been investigated and considered. The Board’s refusal to consider the health and environmental impact of cell towers was arbitrary and capricious."

The Third Count of the lawsuit asserts "the Board acted arbitrarily and capriciously by refusing to consider written evidence proposed by the Plaintiff, without even looking at the proposed documents."

The Fourth Count of the lawsuit asserts "the applicant failed to show that entitlement to both the Use variance and the bulk variances are justified under the criterion set forth in the Municipal Land Use Law. Specifically, the applicant failed to demonstrate special reasons for the granting of a Use Variance, and that such variance is in furtherance with the Master Plan. As such the Board acted arbitrarily and capriciously in granting the application, and the Board's approval should be reversed."

The lawsuit seeks for a Court Order "reversing the decision of the Board of Adjustment, as set forth in the Resolution, to deny any and all variances requested by the defendants; Attorney's fees; Costs of suit; and such other relief as the Court deems just and equitable."

Subsequent to filing the lawsuit, upon obtaining a transcript of the Zoning Board proceeding and hearing Chairman Halberstam's precise words, - as previously reported here on FAA News - Mr. Meyer filed an Amended Complaint, charging that "in addition, when plaintiff specifically asked for an adjournment to provide expert testimony before the Board, he was told by the Chairman that if the Board would approve the application, then ”he could sue the Township and go to Court”, thereby also foregoing the opportunity of making a record due to the decision of the Board. Plaintiff, being a pro-se at the time of the Hearing, relied, due to the action of the Board, on the Board’s direction and was incorrectly lead to believe that going to Court would be the time to supplement and bring additional evidence related to the application... The Board violated the plaintiff’s due process rights, as well as acted arbitrarily and capriciously by refusing to consider and allow plaintiff to establish a full and complete record for the Board’s consideration."

The Amended Complaint also charges that the only testimony the Board heard from Verizon was presented by their professional contracted experts (and not by actual company members) and "the testimony of such witnesses constituted an improper net opinion, and should not have been considered by the Board."

Additionally, when searching for a court transcriber willing to listen to and transcribe the recording of the Board hearing, the court transcriber complained that they had a difficult time hearing the audio due to the poor quality of the Township's sound and recording system. This delayed the lawsuit's discovery process. Mr. Meyer noted this issue in his Amended Complaint.

"Despite repeated requests and representations made by the Board to the Township, the Township continues to have issues with the recording system resulting in difficulty of obtaining a true and accurate record and transcription of the proceedings... Plaintiff’s due process and other rights were violated by the fact that the recording device was inadequate and continues to remain inadequate despite the repeated known issues brought to the attention of the township. The township, having known about this issue for a long period of time should have corrected such faulty recording system or brought/provided a court stenographer to assure a true and accurate transcript of all hearings. The Board violated the plaintiff’s due process rights, as well as acted arbitrarily and capriciously by such conduct. As a result of the actions of the Defendant, the plaintiff has been damaged," the Amended Complaint alleges.

As reported here on FAA News, back in November, Verizon, represented by Attorney Richard Schneider, filed a Motion for Partial Summary Judgement, seeking to dismiss the second and third counts of the lawsuit, on the assertion that health concerns, beyond whether they followed FCC guidelines - for which they presented expert testimony at the Zoning Board hearing - are "out of bounds of the Zoning Board's jurisdiction."

Mr. Schneider wrote that, "the Federal Appeals case which the Plaintiff sought to present as evidence does not disrupt this longstanding well-settled principle of law. Plaintiff, relying on his own erroneous analysis of the Federal Appeals case, seeks to abrogate the preemptive exclusive authority of the FCC over RF emissions and empower the Lakewood Zoning Board to make its own assessment of the potential environmental effects of RF emissions. Any such assessment is barred by the expression provisions of the Federal Communications Act which preserves the traditional authority of state and local governments to regulate the location, construction, and modification of wireless communication facilities, but imposes "specific limitations" on that authority, as once a municipality is presented with a request to construct personal wireless service facilities, the locality is required to follow certain procedures, provide written reasons if it denies the application, and refrain from considering certain substantive rationales - including environmental or health effects - while assessing the application.

"The Zoning Board's Resolution of Approval set forth a specific factual finding that the levels of radio frequency emissions will be in strict compliance with FCC requirements. The Resolution also included a conclusion of law that no local government may regulate the construction of wireless communication facilities on the basis of environmental concerns of Radio Frequency emissions, beyond the extent whether such facilities comply with the FCC regulations concerning such emissions, and therefore, the issue of possible safety issues from the proposed antenna is not a matter which can or should be addressed or considered by the Zoning Board.

"As such, the Board's decision to consider the health and environmental impact of cell towers, as well as to preclude the objectors evidence was not arbitrary, capricious, or unreasonable and was valid as a matter of law, as where governing federal law dictates the Board's scope of action, acting consistent with that federal law can not be deemed arbitrary, capricious, or unreasonable," the Motion concludes.

Zoning Board Attorney Jerry Dasti filed a Motion to Dismiss the entire lawsuit, claiming that while appeals on typical land use applications can be filed up to 45 days after the Board adopts the Resolution, a specific clause in the federal Telecommunications Act limits appeals requires appeals regarding communication facilities to be filed within 30 days after the Board adopts the Resolution, and because this lawsuit was filed past this 30 day timeframe it must be dismissed entirely.

At a hearing held Friday, Judge Hodgson dismissed the first, second, and third counts of the lawsuit, finding that the Zoning Board is indeed bound by the Telecommunications Act which precludes the Board from considering any health concerns beyond whether they comply with FCC guidelines.

Judge Hodgson noted that while the District Court in the EHT case did order the FCC to “(i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines, (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and (iii) address the impacts of RF radiation on the environment," the District Court did not actually strike down the FCC guidelines - including the preemption clause which is what binds the Lakewood Zoning Board to not consider any health or environmental concerns beyond whether they comply with the current FCC guidelines.

Judge Hodgson also dismissed the first count of the lawsuit which alleged that the Board acted arbitrary in refusing to adjourn the hearing so the neighbors could retain "an expert" after Mr. Dasti argued that the actual public hearing was only held several months after the neighbors received initial legal notice regarding the application hearing, and either way, any expert which they would bring would testify regarding health and environmental concerns which the Board is anyways precluded from considering.

The balance of the lawsuit against the Zoning Board remains pending. Judge Hodgson has scheduled oral arguments for Friday, April 17, once all parties file motion briefs.

Although Judge Hodgson's decision on this Motion is not be legally binding on future Zoning Board applications, it certainly does set the tone for future instances where neighbors want to oppose the granting of a Use Variance for installation of a cell tower due to environmental or health concerns.

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