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In a blow to the neighbors on 5th Street, Ocean County Superior Court Judge Francis Hodgson on Friday formally dismissed a lawsuit filed by the neighbors which sought to overturn the Lakewood Zoning Board's approval of a cell tower facility on Clifton Avenue.

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.

Therefore, this decision highlights why it's imperative for the neighbors who are opposed to land use applications to retain an attorney to represent their opposition properly at the land use boards.

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 2022, 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.

[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 2022, 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 Fifth Count of the lawsuit alleges "the Board heard expert testimony from David Stern, Frank Colasurdo and William Masters, Jr. in support of this application. The testimony of such witnesses constituted an improper net opinion, and should not have been considered by the Board."

The lawsuit sought 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 - back in November 2022, Mr. Meyer filed an Amended Complaint to the lawsuit, which adds on, "the plaintiff was not allowed to properly present and make a full record as to his knowledge of the subject matter during the proceeding before the Board. 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.

As such, the Sixth Count of the lawsuit contends "The plaintiff was not allowed to properly present and make a full record as to his knowledge of the subject matter during the proceeding before the Board. The Board acted arbitrarily and capriciously by refusing to consider and allow plaintiff
to establish a full and complete record for the Board’s consideration."

The Seventh Count of the lawsuit charges "Plaintiff, being a pro-se at the time of the Hearing, relied to his detriment due to the actions of the Board, on the Board’s direction and was incorrectly mislead 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 such conduct."

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 as the Eighth Count of his Amended Complaint.

As previously reported here on FAA News, back in February 2023, Judge Hodgson dismissed the first three counts of the lawsuit, finding that the Zoning Board is indeed bound by the federal Telecommunications Act which precludes the Board from considering any health concerns beyond whether they comply with FCC guidelines.

Judge Hodgson specifically clarified that while the District Court in the EHT case did indeed 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.

As previously reported here on FAA News, back in March, Verizon filed a Motion for Summary Judgement on the balance of the lawsuit, arguing that the Board's approval was supported by the record and not in any way arbitrary, capricious or unreasonable.

In response to the Fourth and Fifth Counts of the Complaint, Verizon countered that they did present the proofs necessary to receive a Use Variance.

"In the Sixth, Seventh, and Eighth Counts of the Complaint, Plaintiff makes vague and unsupported allegations that his due process rights were somehow violated. These allegations have no merit.

"In the Sixth Count, Plaintiff alleges that he 'was not allowed to present and make a full record as to his knowledge of the subject matter during the proceeding before the Board.' This is plainly inaccurate, as Plaintiff was allowed to testify regarding his 'knowledge of the subject matter.' Plaintiff's claimed "knowledge," however, solely related to his allegation that the radio frequency emissions from the site would potentially create harmful health effects, and the material allegedly supporting that assertion that he unsuccessfully attempted to introduce. This Court already ruled when granting the Partial Summary Judgement Motions previously filed by Verizon and the Board that this their subject area was preempted as a matter of law, and that the Board properly refused to allow this "evidence."

"In the Seventh Count, Plaintiff alleges that he was incorrectly misled to believe that he could supplement the record before this Court. That did not happen, and again, because the subject area has been preempted, he would not have been able to introduce this type of material and testimony before a court in any event.

"In the Eighth Count, Plaintiff alleges a due process violation based upon claimed inadequacy of the recording device utilized by the Board and Township. This is not an issue for Verizon to directly address, but it seems clear that there could not have been a violation, because a perfectly adequate transcript of the hearing, has been produced and provided.

"There is no genuine issue of material fact lending why credence to the allegations, all of which should be dismissed," Verizon's Motion concludes.

Zoning Board Attorney Jerry Dasti Esq. also filed a Motion for Summary Judgement, along the same lines as the claims asserted by Verizon.

As previously reported here on FAA News, the neighbors, represented by Attorney Jonathan Leitman Esq. of the Law Office of Jan Meyer & Associates, submitted Opposition to the motions for summary judgment, arguing they should be denied and the matter should proceed to a trial hearing - all because Zoning Board Chairman Abe Halberstam misled the neighbors.

Mr. Leitman wrote:

The Plaintiff alleges that Board Chairman Halberstam made material and improper misstatements of procedure to the Plaintiff, in Plaintiff’s expressing his opposition to the application.


Plaintiffs submit that such misrepresentations are sufficient to create a material question
of material fact as to whether the Resolution should be vacated, and remanded to the


In the February 7, 2022 Hearing,  the Plaintiff sought to comment on the application for such variances (hereinafter as the “Subject Application”). During such time, he was repeatedly rushed and brushed off by the Board. He was also repeatedly derisively asked whether he was an expert or just relying on internet research. In response to the concern of the Board that he was not an expert, the Plaintiff sought permission to retain an expert. Accordingly, he requested an adjournment to retain an expert.


NEIGHBOR: Could I just say… if we could carry with a professional, we want to ask –

CHAIRMAN HALBERSTAM: If it does get approved, you can sue the township and you could go to court. That’s what you can do.

NEIGHBOR: Could we carry with a professional?

CHAIRMAN HALBERSTAM: If the project gets approved, you can take it to Court. Okay?

NEIGHBOR: Thank you.

The Plaintiff clearly understood Chairman Halberstam to be responding to his inquiry regarding bringing a professional. By his, at best, imprecise response, Chairman Halberstam led him to believe that he would be entitled to bring relevant experts to testify in litigation with the municipality.

This representation is inaccurate. In fact, in actions in lieu of prerogative writs, such as the instant action, the action is based on the record below. Unlike Chairman Halberstam’s representation, the Plaintiff will not be able to retain relevant experts until and unless this matter would be remanded back to the Board of Adjustment.

It is the responsibility of a public official to not make misrepresentations, intentional or otherwise, to members of the public. New Jersey has strong laws requiring that public officials be scrupulous in dealing with members of the public. For this reason, the Supreme Court has established the “Square Corners” doctrine. This doctrine requires
that “In dealing with the public, government must turn square corners... The government has an overriding obligation to deal forthrightly and fairly with [the public]…. Its primary obligation is to comport itself with compunction and integrity[.]” “It is not a prerequisite to application of the "square corners" doctrine that the municipality engage in bad faith, innocent misrepresentations… or inadvertent errors do not relieve the government of its obligation to deal fairly, forthrightly, and scrupulously with the public.

In this matter, there is a legitimate question of fact as to whether the neighbor was misled. Indeed, he certifies that he understood the comments from the Chairman to mean that he would be afforded the opportunity to provide relevant expert testimony in ligation. He further certifies that such experts would have included all relevant experts, including non-health related experts. Instead, the Chairman misled the Plaintiff into believing that he would be afforded such an opportunity at a later date, if he brought suit. Fundamental fairness requires that the Plaintiff be afforded the opportunity to remedy this misrepresentation.
There is, at a minimum, a question of fact as to whether the Chairman’s misrepresentation to the Plaintiff that he would be afforded the opportunity to provide expert testimony at a later date should justify a vacation of the Subject Resolution, and
a remand of this matter back to the Board of Adjustment for further testimony and consideration.

For all of the foregoing reasons, the instant motions for summary judgment must be denied, and the Plaintiff should be afforded the opportunity of a hearing regarding this matter.

As previously reported here on FAA News, Verizon shot back with a final Reply Brief, citing case law from Woodland Civic Association in which the Court found that a decision as to whether to grant an adjournment to an objector to an application is within the sound discretion of the Board, is presumed to be correct, and may only be overturned if it is shown to be so arbitrary, unreasonable, and capricious as to amount to an abuse of discretion.

"Plaintiff was notified of the hearing, had nearly four months to prepare for it, and failed to submit any competent evidence whatsoever to support his objection. The sole basis for his objection was his concern about health effects, a subject area that the Board properly refused to address. It was only when the Plaintiff realized that he was not going to be successful that he decided at the last minute to ask for an adjournment to allow him to consult an expert. He could have done so before the hearing, and it is evident that the subject area he would have wanted any expert to address was not admissible in any event.

"The Board did not err when it refused his request for an adjournment, and even if it had, Plaintiff and the other objectors received a fair and thorough hearing, so the failure to grant the adjournment would not provide a basis for overturning the Board's approval of the application.

"No challenge has been made to the substantive findings of the Board or to the grant of the variances. Accordingly, the Resolution of Approval should be upheld."

Zoning Board attorney Jerry Dasti Esq. concurred, writing "for the Plaintiff to allege that Chairman Halberstam made material and improper misstatements of procedure is simply incorrect. Frankly, that issue has nothing at all to do with whether or not the Board's Resolution could be deemed arbitrary, capricious, or unreasonable.

"The Plaintiff alleges that it wanted more time to obtain a professional expert to testify as to the alleged adverse health effects of cellular antennas. However, as this court is well aware, and has already ruled, that issue has been preempted by FCC, therefore the allegations of adverse health effects are not germane to this application.

"Therefore, it is clear that even assuming that the Zoning Board agreed to postpone the hearing to allow Plaintiff to obtain an expert, any potential testimony from that expert concerning adverse health effects would not have been admissible and permitted at the Zoning Board hearing.

"We believe it is telling that the Plaintiff's brief says nothing of the proofs submitted upon which the Zoning Board relied to grant the application. To allege that the matter should be remanded to the Zoning Board for a new hearing, so that presumably the Plaintiff could then retain the services of an expert (whose testimony concerning alleged health effects would not be admissible in any event,) is simply an attempt to continue dodging the important issues in this litigation.

"It is hard to understand how the Plaintiff can allege that he was misled by Halberstam. It is hard to accept the allegation that he believes that he would be "afforded the opportunity to provide relevant expert testimony in litigation." Such alleged expert testimony would never have been permitted by the Zoning Board, and certainly not by the Court.

"We therefore request that the Court affirm the Board's Resolution of Approval."

At Friday's hearing, front and center was exactly what Chairman Halberstam said, what he meant, and whether he was rude and misleading, and if he was, is that a sufficient reason to toss out the Board's approval.

Mr. Schneider and Mr. Dasti argued that the Board had already adjourned the hearing for 4 months after the neighbors received their legal notice regarding the public hearing. They also noted that all of their expert reports were on file in the Board office prior to the hearing, so the neighbors had plenty of time to review the material and determine what expert they wanted to retain.

They also insisted that the neighbors sole opposition was regarding health concerns, which the Board properly pushed back due to the federal preemption rule.

Therefore, Mr. Schneider stated, "the Board did not in any way treat the Plaintiff disrespectfully. The article he tried to submit was irrelevant to the Board."

Mr. Dasti added, "the Plaintiff's sole remaining argument is that Chairman Halberstam was allegedly rude to him at 11:00pm or didn't permit him to adjourn. That argument is not sufficient to carry the day here and remand the matter back to the Board for a new hearing."

Mr. Leitman pushed back vehemently, arguing "there is a fundamental difference of opinion here. Chairman Halberstam did not simply deny his request to adjourn the hearing. Rather, he misled him - as he was not represented by an attorney - into thinking that he would have the opportunity to bring an expert to court, which is in fact not the state of the law. It's not that simply that he was rude, but misleading, which should be sufficient grounds for the Board's approval to be deemed arbitrary, capricious and unreasonable, and for which a remand back to the Board for a new hearing is justified.

Additionally, Mr. Leitman pushed back against Mr. Dasti and Mr. Schneider's claims that the neighbors were solely concerned about health concerns, noting that his client certified that had he been granted an adjournment, he would have brought an expert on the use variance as well and be guided appropriately.

Mr. Dasti shot back, "for the sake of this discussion, let's say the judge does remand the matter back to the Board for a new hearing, the neighbors will anyways only bring an expert for health concerns, which would lead the Board to anyways approve the application. Therefore there is no point to remand the matter back to the Board. The Board's decision can therefore not possibly be deemed arbitrary."

Mr. Leitman countered, "regardless of whether we'll end up in the same place at some time in the future, because there was an error in procedure, we do deserve a new hearing."

Ultimately, Judge Hodgson dismissed the lawsuit with prejudice entirely, saying that "from the punctuations in the transcript, it seems that everyone was talking over each other."

Judge Hodgson stated that in his view, "the chairman did not mislead the neighbor. He was simply denying his request to adjourn and he told him he can appeal in court."

Judge Hodgson noted the neighbors complaints, but added that established case law states that the Court can not decide that the Board could have come to "a better decision," rather the court can only determine if the Board's decision was arbitrary, and the court is limited to overturning the Board's decision only if it is found to be arbitrary, capricious and unreasonable.

In this particular instance, the neighbors are not opposing the substance of the application itself, rather they are only arguing that the Board's decision not to adjourn was arbitrary.

However, the expert reports were made available way before the hearing was actually held so he could have read them and determined what expert he wanted to bring. He doesn't have a right to wait until well into the public hearing to first demand an adjournment to get an expert.

Judge Hodgson concluded that while the neighbors assert that the court may technically be able to remand the matter back to the Board, and Verizon does have funds to pay for an additional hearing, at the same time, "these are business people and time is money."

The neighbors have 45 days to file an appeal should they choose to do so.

Judge Hodgson previously scheduled oral arguments on the matter for Friday, April 17.

As this was right after Pesach and the motion filing would have been due on Yom Tov, Mr. Meyer requested a brief adjournment, clearly clarifying that the request was due to the Religious holiday.

As previously reported here on FAA News, quite shockingly, Verizon's attorney objected to this accomodation.

As previously reported here on FAA News, the Lakewood Zoning Board attorney, who is funded by the taxpayers of Lakewood, joined in Verizon's objections!

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