In a blow to 5th and 6th Street residents, the New Jersey Appellate Division has just affirmed Ocean County Superior Court Judge Francis Hodgson's dismissal of a lawsuit which sought to overturn the Lakewood Zoning Board's approval of a cell tower facility on Clifton Avenue.
The judges said they were "unpersuaded" by the neighbors' contention that Zoning Board Chairman Abe Halberstam misled and misrepresented the legal procedures to them.
In Fall of 2021, Verizon Wireless submitted an application to the Zoning Board requesting Use Variance approval to install a cell tower atop the Senior Citizen resident building on Clifton Avenue and 5th Street in Downtown Lakewood.
The public hearing was postponed for 3 months after neighbors were provided initial notice of the application.
At the Zoning Board public hearing held in March 2022, 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 New Jersey Superior Court in Ocean County.
As previously reported here on FAA News, the Amended Complaint asserts, "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, in May 2023, Judge Hodgson dismissed the lawsuit, 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."
As previously reported here on FAA News, the neighbors, flying pro se, filed an appeal to the Appellate Division.
Following oral arguments which were held on the matter on Tuesday, May 21, 2024, Appellate Division Judges Sumners and Perez Friscia have just issued a written ruling affirming Judge Hodgson's dismissal of the complaint.
The ruling states:
We are unpersuaded. We begin by noting Cellco's application was filed on July 23, 2021. After the application was deemed complete on October 20, the neighbor was noticed of the application by certified mail five days later. While under N.J.S.A. 40:55D-12, Cellco was required to provide only ten-days' notice "prior to the date of the hearing," the neighbor had over three months to prepare for the hearing as the application was carried to February 2022.
The neighbor was thus provided ample time beyond the statutory requirement to review the application, prepare opposition, and retain an expert.
Addressing the neighbor's contention that the Chairman made an intentional misrepresentation, a review of his specific questions at the hearing is relevant.
The neighbor asked if the application "get[s] approved," could he request the matter be carried for a professional. In response, the Chairman stated, "[i]f it does get approved you can sue the township and you could go to court." The Chairman responded to his follow-up question, regarding whether he "could carry with a professional," that "if the project gets approved you can take it to court." The neighbor had been advised earlier in the hearing, when he addressed the science behind the FCC standards, that "professional[s] . . . give testimony" before the Board "when it comes to these things." The neighbor acknowledged understanding "there is a federal law" and regulations. We conclude the exchange cannot reasonably be interpreted as the Chairman advising the neighbor that he would have an "opportunity to bring experts to the [c]ourt in opposition to the [a]pplication." Thus, no misrepresentation was made mandating reversal of the Board's approval.
The neighbor's further assertions that he was "repeatedly rushed" and "requested an adjournment" is belied by the record, which reflects he was given an opportunity to fully participate and failed to specifically articulate a reason for a continuance. A board is obligated to afford an interested party the opportunity to be heard and to cross-examine other witnesses. See N.J.S.A. 40:55D-4 & -10(d); see also Mercurio v. DelVecchio, finding the denial of an objector's request for an adjournment was not arbitrary.
We observe the Board, as evidenced by the resolution, recognized the application was "complete"; thus, a "failure to act within that time period, absent the consent to an extension by . . . [Cellco], could result in the application automatically being approved."
Other than voicing his displeasure and disagreement with the FCC regulations, we observe that the neighbor offered neither a legal basis to challenge the application nor a reason justifying a continuance.
The record evinces that the Board provided him a fair opportunity to be heard as evidenced by his statements regarding: his personal opposition to the application; a neighbor's objection letter; and two articles on the applicable FCC regulations. At the hearing, he had the opportunity to expand on his health concerns regarding radio frequency emissions and cellular technology.
The Board correctly balanced, providing each objector a fair opportunity to be heard, against the timely adjudication of the application in accordance with the completed zoning application time limitation.
Notably, continuances are not required to "be granted in all instances, but only where it appears that the request is meritorious; that denial would probably be prejudicial to an interested party[;] and that depending on the overall facts, denial would probably constitute arbitrary and capricious action by the board." Cox & Koenig, New Jersey Zoning & Land Use Administration, § 18.5-1, at 265 (2024).
We concur with the court that the neighbor was provided a sufficient opportunity to be heard. Further, the Board was not required to grant the neighbor additional time as he provided no explanation for failing to timely engage an expert.
We conclude the Board's actions were not arbitrary, capricious, or unreasonable as no misrepresentation was made. The neighbor had sufficient time to prepare opposition, an opportunity to be heard, and his arguments considered. Because he did not exercise his right to prepare opposition, there is no merit to his appeal.
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