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APPEALS COURT SET TO CONSIDER LAKEWOOD RESIDENTS' CLAIMS OF MISREPRESENTATION BY ZONING BOARD CHAIRMAN IN CELL TOWER APPROVAL



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, have filed an appeal from 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.


The appeals court has now scheduled oral arguments to be held on the matter next Tuesday, May 21, 2024, FAA News has learned.


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.


In lieu 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, spoke up in opposition to the Use Variance request, citing health and environmental concerns



The Zoning Board ignored this opposition. One neighbor 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." The Board then approved the application.


The neighbors subsequently 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 New Jersey Superior Court in Ocean County 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."


The Seventh Count of the complaint 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.


As previously reported here on FAA News, following additional oral arguments held in May 2023, Judge Hodgson dismissed the balance of the lawsuit with prejudice entirely, saying that "in my 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.


As previously reported here on FAA News, the neighbors, now flying pro se, have 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 the neighbor would be entitled to being relevant experts to court to testify in litigation. This was, in fact, the neighbor'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.


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.


Zoning Board Attorney Jerry Dasti argued back in his briefs:


As was demonstrated to the trial Court, the Board did not act arbitrarily, capricious, and/or unreasonably in denying the neighbor'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 the neighbor 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. The neighbor 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 the neighbor 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... 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.


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


The appeals court has now scheduled oral arguments to be held on the matter next Tuesday, May 21, 2024. A written decision will follow.


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