Lakewood residents are continuing to argue in Superior Court that the Lakewood Zoning Board's approval of a cell tower facility on Clifton Avenue should be overturned because Chairman Abe Halberstam misled the neighbors.
A hearing is on the matter is scheduled for next Friday, May 12.
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 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 - 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, Ocean County Assignment Judge Francis 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.
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.
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.
Mr. Schneider wrote that Verizon presented testimony from three experts who presented "uncontroverted testimony," that there existed a gap in cellular service in this area and that this proposed tower will fill this gap, and no competent evidence whatsoever was submitted in opposition to this aspect of the application, as the lay objectors focused their opposition entirely on "perceived harmful effects that might ensue from the radio frequency emissions generated by the proposed antennas."
Additionally, their planner testified that the application meets the "positive and negative criteria" required for the granting of a Use Variance, pursuant to Case Law from the Supreme Court which has ruled, in SMART SMR v. Fair Lawn Bd. of Adjustment, that applications for wireless communication facilities are to be assessed (in terms of the negative criteria) under the same criteria applicable to inherently beneficial uses, which were established in the 1992 Supreme Court case known as Sica v. Bd. of Adjustment of Tp. of Wall.
Verizon's planner testified that their application satisfies the positive criteria because "the site would be particularly suitable" for 6 reasons:
1) it would achieve the technical objective of Verizon Wireless by providing reliable, uninterrupted service for this area of Downtown Lakewood where coverage gaps exist
2) a developed property with an existing tall building - in fact, one of the tallest buildings in Lakewood - would be utilized
3) the proposed use would be compatible with the existing building and its use
4) the site would be proximate to major traffic corridors, which are the primary generators of the need for wireless telecommunications service
5) the site would have the ability to accommodate future collocatord
6) Moshe Eichler was a willing landlord
Their planner also testified that the application meets the negative criteria required for the granting of a Use Variance, pursuant to Sica:
Under the first step, a Board is required to identify the public interest at stake. Verizon's planner noted that there is case law which has established that issuance of an FCC license is sufficient to establish that cell towers "serve the general welfare" and therefore, the public interest is served.
Under the second step, a Board is required to identify any detriment effect that might ensue from the granting of a variance, with the primary emphasis being on visual impacts. Verizon's planner suggested that the visual impact from this site would not rise to the level of being significant. He further highlighted in that regard the significance of the location of the equipment interior to the building so that such equipment is not visible.
Under the third step, a reviewing Board may reduce any perceived detrimental effect by imposing reasonable conditions.
For the fourth and final step, a Board is required to weigh the positive and negative criteria, and determine on balance the grant of the variance would cause a substantial detriment to the public good. Verizon's planner concluded that the application here, with specific emphasis on the utilization of an existing tall structure (which, significantly, eliminated any need to construct a new freestanding structure), would satisfy the positive criteria and the negative as well, because it could be granted without substantial detriment to the public good or substantial impairment of the zone plan of the Township.
Mr. Schneider continues by noting that the Zoning Board agreed with their testimony, as their Resolution of Approval specifically states that "the positive benefits from this application greatly exceeds any negative results from the application." That determination is grounded in the record made before it, and was not arbitrary, capricious, nor unreasonable, and the Court should therefore affirm the Board's approval.
"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.
Today, 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 Board.
In the February 7, 2022 Hearing regarding the subject application (hereinafter as the “Subject 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. “Public office and employment are a public trust”. N.J.S.A. Sec. 40A:9-22.2(a). 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." F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418 (Citing Gruber v. Mayor and Tp. Com. of Raritan Tp., 73 N.J. Super. 120 (App.Div.), aff'd., 39 N.J. 1 (1962)). “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[.]” Id. “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.
Judge Hodgson has scheduled oral arguments on the motions for next Friday, May 12. Prior to the oral arguments, Verizon and the Zoning Board will have a final opportunity to reply to this Opposition.
At oral arguments, Judge Hodgson can either grant the motions, which would mean that the lawsuit is over and the Board's approval stands, or deny the motions and permit the case to proceed to a trial hearing which would take place in another few months.
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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