Downtown Lakewood neighbors continue to fight in Superior Court against the planned installation of a cell tower facility in the area. Verizon and the Zoning Board have filed motions to retain the approval of the tower. Today the neighbors filed court documents in opposition.
A hearing on the matter is on schedule for next Friday, February 17.
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, a Use Variance from the Zoning Board would be necessary for a cell tower "facility" in this location.
Verizon submitted an application to the Zoning Board requesting a Use Variance. According to documents submitted with their application, "Downtown Lakewood currently lacks adequate 4G signal coverage and system capacity, causing customers to experience gaps in service. The proposed wireless communications facility is anticipated to increase capacity and signal strength in the Downtown area."
In conjunction with Verizon's submission of their Zoning Board application, they submitted two Radio Frequency expert reports; a Radio Frequency Analysis and Report, and a Radio Frequency Emission Study, which were written by David Stern of V-COM.
At the Zoning Board meeting held in March, Mr. Stern - whose qualifications as an expert witness in the field of radio frequency engineering were accepted by the Board - presented expert testimony in accordance with his Radio Frequency Emission Study establishing that the proposed wireless communication facility would comply with the FCC regulations in regard to radio frequency exposure limits.
[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.]
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.
Morristown Attorney Richard Schneider who was representing Verizon counter asserted that the Zoning Board is precluded from considering the health effects of the cell tower, beyond whether they followed FCC guidelines in regard to radio frequency exposure limits, and their expert witness testified that they meet those guidelines.
In response to this assertion, the neighbors attempted to distribute to the Board articles regarding a Federal appeals court opinion 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 recently 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, "longstanding, well-settled principles of law grant the exclusive authority of the Federal Communications Commission to regulate Radio Frequency emissions. 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 and requires the dismissal of the second and third counts of Plaintiff's Complaint.
"The Telecommunications Act 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.
Verizon's proposed Order states:
The Court finds that the subject matter of any harmful effects relating to radio frequency emissions has been preempted as a matter of law, and that the Defendant, Board of Adjustment of the Township of Lakewood, accordingly did not err in refusing to allow the Plaintiff to submit any evidence relating to same, and Partial Summary Judgment is hereby entered in favor of the Defendants dismissing with prejudice the Second Count and the Third Count of the First Amended Complaint in Lieu of Prerogative Writs filed in this matter.
Zoning Board Attorney Jerry Dasti submitted a letter of correspondence to the Court agreeing to Verizon's assertions and asking the Court to dismiss the second and third counts with prejudice.
More recently, Mr. 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.
The relevant federal statue (47 U.S.C. 332 (7)(B) states:
A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request...
Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction....
Verizon's attorney submitted a letter of concurrence, as to the second and third counts of the complaint.
Today, Attorney Jonathan Leitman of the Law Office of Jan Meyer, representing the neighbors shot back strongly with Opposition to both motions.
"This clause [in the Telecommunications Act] does not modify the statute of limitations for any and all actions that involve telecommunication devices, rather it applies only to those adversely affected by the failure of a government agency to take action on an application submitted for telecommunication devices within a certain timeframe. Accordingly, this limitation is wholly inapplicable, and the the Board’s motion for summary judgment must be denied," Mr. Leitman wrote.
Regarding Verizon's Motion for Partial Summary Judgement, Mr. Leitman wrote:
"The preemption of consideration of health impact of radiofrequency devices, based on FCC standards, would be manifestly absurd, when Federal Courts have determined that the FCC cannot show that such standards are safe. Verizon’s motion for Summary Judgment claims that the Board acted properly in refusing to consider the health impacts of radiofrequency radiation. Indeed, The Federal Communications Act does facially appear to preempt such an inquiry. However, this provision is based on the assumption that the FCC presents a factually based, logical standard to be followed.
"That has already been determined by Federal Court to not be the case.
"By way of history, the FCC Standards regarding radiofrequency radiation were
adopted in 1996. Since that time, obviously, there has been extensive proliferation of
radiofrequency devices and extensive research regarding the health impact of such
radiation. In 2013, the FCC initiated a reevaluation of the existing standards, to
evaluate whether developments since the adoption of the standards in 1996 justify
changing said standards. This reevaluation was necessary “to ensure that our
measures are compliant with our environmental responsibilities and requirements and
that the public is appropriately protected from any potential adverse effects from RF
exposure as provided by our rules.”
"In 2019, the FCC resolved the inquiry, by declining to substantially amend the RF
standards. Thereafter, several petitioners, including, inter alia, the Environmental
Health Trust, petitioned the Court to review the FCC’s determination that no change
was warranted. The DC Circuit Court determined that the FCC’s resolution was
arbitrary and capricious, and ordered the FCC to reopen the inquiry.
"Under this highly deferential standard of review, we find the Commission's order arbitrary and capricious in its failure to respond to record evidence that exposure to RF radiation at levels below the Commission's current limits may cause negative health effects unrelated to cancer. (As we explain below, we find that the Commission offered an adequate explanation for its determination that exposure to RF radiation at levels below the Commission's current limits does not cause cancer.) That failure undermines the Commission's conclusions regarding the adequacy of its testing procedures, particularly as they relate to children, and its conclusions regarding the implications of long-term exposure to RF radiation, exposure to RF pulsation or modulation, and the implications of technological developments that have occurred since 1996, all of which depend on the premise that exposure to RF radiation at levels below its current limits causes no negative health effects. Accordingly, we find those conclusions arbitrary and capricious as well. Finally, we find the Commission's order arbitrary and capricious in its complete failure to respond to comments concerning environmental harm caused by RF radiation.
"Accordingly, despite a highly deferential standard of review, the Circuit Court found that the FCC could not present any meaningful evidence that the current standards adequately protect the health of the public, or the environment. The FCC had recognized that its current standards only make sense “when it is based on known adverse health effects having a well-defined threshold."
"The Circuit Court has established that this is the case, with regard to RF radiation. Indeed, the Circuit Court pointed to the fact that many prestigious institutions objected to the RF standards, including the “American Academy of Pediatrics; the Council of Europe; the Cities of Boston and Philadelphia; medical associations, see, e.g. California Medical Association; thousands of physicians and scientists from around the world, and hundreds of people who were themselves or who had loved ones suffering from the alleged effects of RF radiation.”
"Based on the findings of the Circuit Court, it is clear that there is no basis to
conclude that the RF standards adequately protect the public. This is in derogation of
the FCC’s recognized duty to “ensure… that the public is appropriately protected from
any potential adverse effects from RF exposure.”
"It is well established that a court, even if the terms of a statute are clear, “if a literal application of the statute would create a manifestly absurd result, contrary to public policy, which the Legislature could not have reasonably intended, then the court would be permitted to construe the statute.” Watt v. Mayor & Council of Franklin, 21 N.J. 274, 277-78 (1956). When the Court is called upon to interpret a statute, the “overriding goal must be to determine the Legislature's intent." State Dep't of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 627 (1995). “Thus, when a literal interpretation of individual statutory terms or provisions would lead to results inconsistent with the overall purpose of the statute, that interpretation should be rejected.” Hubbard v. Reed, 168 N.J. 387, 392-93 (2001).
"Congress was clear that the FCC was required, in adopting their standards, to consider “the safety of life and property”. 47 U.S.C. 332(a)(1). This is the backbone basis of preemption- the FCC will, based on the science, determine what is healthy and, once they’ve done that, other entities should not be able to re-litigate such matters.
"Once the Court has already adjudged that the FCC cannot show that its standards protect the public, though, this no longer makes sense. If the FCC has been determined to be unable to show that existing standards are safe for the public, preemption is, essentially, a death pact. It forces the public to allow the construction of devices that cannot be established as safe in their communities. This is clearly not what was intended by Congress, as made clear by the fact that the first aspect that Congress required the FCC to consider in adopting its standards was the safety of life and property. Accordingly, the Court is should give effect to the intention of congress, in seeking to adequately ensure the safety of the public, and rule that the preemption based on a standard cannot be required, when the agency has already been adjudged to not be able to support the claim that such standard adequately protects the health of the public.
"For all of the foregoing reasons, the Defendants’ motions for summary judgment must be denied."
Assignment Judge Francis Hodgson has scheduled oral arguments on both motions for next Friday, February 17, 2023.
Although Judge Hodgson's decision on this Motion will not be legally binding on future Zoning Board applications, it will certainly 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.
Regardless of how Judge Hodgson rules on the standing of the Second and Third counts of the Complaint, the remaining counts which are only against the Zoning Board (and not against Verizon per se) will remain. A trial on the remainder of the lawsuit will be scheduled for a later date.
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