LAKEWOOD RESIDENTS OPPOSED TO CELL TOWER ON CLIFTON AVENUE BRING THEIR CASE TO THE APPELLATE DIVISION

Back in May 2023, in a blow to 5th and 6th Street residents, Ocean County Superior Court Judge Francis Hodgson dismissed their lawsuit which sought to overturn the Lakewood Zoning Board's approval of a cell tower facility on Clifton Avenue.

Undeterred, the neighbors, now flying pro se, are appealing this decision to the New Jersey Appellate Division.

The appeal is hinging on allegations that Zoning Board Chairman Abe Halberstam misled and misrepresented the legal procedures to the neighbors.

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.

Samuel Lovinger, a neighbor of the proposed tower, 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 Board Attorney Jerry Dasti asserted the articles were irrelevant because "he is sure there are other articles that say differently."

Mr. Lovinger then 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."

Specifically, the following exchange took place:

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

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

Lovinger: Could we carry with a professional?

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

Lovinger: Thank you.

The Board then voted to approve the Use Variance application.

The neighbors then retained Teaneck Attorney Jan Meyer Esq. to challenge the Board's approval.

In April 2022, as first reported here on FAA News, Mr. Meyer filed a Complaint in Lieu of Prerogative Writs in Superior Court seeking to overturn the Zoning Board's decision.

This complaint included assertions that the Board arbitrarily dismissed the neighbor's environmental concerns.

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."

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.

Subsequently, the Zoning Board and Verizon filed motions for summary judgement as to the balance of the complaint.

Mr. Meyer filed opposition to the motions, arguing that 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.

At the public hearing, 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.

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.

At oral arguments on the motion held in May 2023, Attorney Jonathan Leitman representing the neighbors, argued strongly "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.

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.

The neighbors, now flying pro se, have now filed an appeal to the Appellate Division.

The briefs state:

During the Zoning Board's public hearing, the Plaintiff sought to comment on the 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 statements by the Plaintiff, Halberstam asked whether he was an expert in the required field, as he would be required to be for his testimony to be considered.

In response to the Board's concern that he was not an expert, the Plaintiff sought permission to retain an expert. Accordingly, he requested an adjournment to retain an expert.

The Plaintiff understood Halberstam's responses to mean that if the application is approved, he would have the opportunity to bring experts to the court in opposition to the application.

Chairman Halberstam created the clear impression that Loevinger would be entitled to being relevant experts to court to testify in litigation. This was, in fact, Loevinger's understanding of Halberstam's comment.

This representation however, is inaccurate. In court, the action is based on the record before. Therefore, unlike Chairman Halberstam's representation, the Plaintiff will not be able to retain relevant experts unless this matter would be remanded back to the Board.

It is the responsibility of a public official to not make misrepresentations, intentional or otherwise, to members of the public.

Of note, in this particular instance, the Plaintiff was unrepresented at the Board hearing. He was, understandably, relying on the Board for understanding of the procedures involved in challenging the Board's resolution.

The Plaintiff submits that there was, at a minimum, a question of fact as to whether Chairman Halberstam's comment constituted a misrepresentation of such procedure, which was reasonably relief upon by the Plaintiff.

Accordingly, Judge Hodgson's conclusion that, as a matter of law, Chairman Halberstam's comments were not a misrepresentation is in error, and should be reversed.

Even if Chairman Halberstam's comments did not amount to a misrepresentation per sentence, Judge Hodgson failed to consider whether there was, at a minimum, a question of fact as to whether they were unfair, in that they clearly created a justifiable misunderstanding by an unrepresented member of the public, who justifiably relied upon such statements.

Judge Hodgson erred in failing to consider that there was, at a minimum, a question of fact as to whether Chairman Halberstam made material misrepresentations to the Plaintiff that justify vacating the Board's approval. Fundamental fairness requires that the Plaintiff be afforded the opportunity to remedy this misrepresentation. Accordingly, the Summary Judgement order should be reversed.

In just filed briefs, Zoning Board Attorney Jerry Dasti argues:

As was demonstrated to the trial Court, the Board did not act arbitrarily, capricious, and/or unreasonably in denying Loevinger's request for an adjournment. Moreover, the information provided to him at the hearing was factual and not a misrepresentation.

Firstly, as Judge Hodgson already noted, the Board could not take into consideration any environmental concerns as to the harmful affects related to radio frequency emissions.

Secondly, even if the Board had been permitted to accept testimony on the issue, the Board's decision not to grant an adjournment was not arbitrary. In fact, the appellant fails to cite any case law to the contrary.

The only reason Mr. Loevinger requested an adjournment was due to the fact that he did not provide an expert to testify. The Board's public hearing took place 3 months after Verizon initially sent legal notice to the neighbors regarding the hearing. Mr. Loevinger had plenty of time to retain an expert. The only reason he did not have an expert is because he chose not to bring one. Furthermore, even if he has retained an expert to testify before the Board, such testimony (regarding harm caused by radio frequency emissions) would have been improper for the Board to consider.

Given the fact that the Board could not have considered the testimony from an expert of the Appellant's choice, the Board acted reasonably in denying the adjournment request.

Regarding Chairman Halberstam's comments, the Appellant fails to outline the standard for a claim for misrepresentation or detrimental reliance. He does not even demonstrate any chance of success on this issue.

Even if he had, the information provided to him at the hearing was factual and no information was misrepresented to him.

Halberstam never advised Loevinger that he would be permitted to provide expert testimony at the trial court level. The fact that he took the chairman's comments to mean what he thought or wanted it to mean does not create a misrepresentation by the chairman.

Based on the record, Judge Hodgson properly granted summary judgement in favor of the Board. The Appellant has failed to demonstrate any abuse of discretion by the trial court.

Verizon submitted similar arguments, with the following addition:

Even if Plaintiff misunderstood what he was told by the Board Chairman, it could not have amounted to a misrepresentation. In order to support a claim for misrepresentation, a plaintiff must demonstrate that there was a material representation of fact, made with knowledge of its falsity and with the intention that the other party rely thereon, which resulted in reliance by that party to his detriment. Jewish Center of Sussex Cty v. Whale.

Here, the exchange between the Plaintiff and the Board occurred after he had already presented his objections, and during the course of the same colloquy in which he was told that there would be no continuance. In other words, the die was already cast, in the sense that the adjournment request had already been denied and there could be no detrimental reliance on the part of plaintiff because nothing changed. While Plaintiff may complain that his request for a continuance should have been granted, the fact that it was not clearly can not support a claim for misrepresentation based upon detrimental reliance.

Plaintiff received a fair hearing. Decisions made by the Board are entitled to a presumption of validity (Kramer v. Board of Adjustment of Sea Girt), and plaintiff has not presented anything here that can overcome that presumption.

The Board's refusal to grant the last minute request for an adjournment was, under all of the circumstances, well with its discretion.

The Appellate Division's appeal process is lengthy. Oral arguments will likely not be held for another 15-18 months.

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