1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-19-1999

Cellular Telephone v Zoning Bd. of Ho-Ho-Kus

Precedential or Non-Precedential:

Docket 98-6484

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Recommended Citation

"Cellular Telephone v Zoning Bd. of Ho-Ho-Kus" (1999). 1999 Decisions. Paper 305.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/305
Filed November 19, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-6484 

CELLULAR TELEPHONE COMPANY, 

d/b/a AT&T Wireless Services, f/k/a Cellular One; 

NEW YORK SMSA LIMITED PARTNERSHIP 

AND ITS GENERAL PARTNER CELLCO PARTNERSHIP, 

d/b/a Bell Atlantic Nynex Mobile; 

SMART SMR OF NEW YORK, INC., 

d/b/a Nextel Communications 

v. 

ZONING BOARD OF ADJUSTMENT OF THE 

BOROUGH OF HO-HO-KUS 

 New York SMSA Limited Partnership and 

 its General Partner Cellco Partnership, 

 d/b/a Bell Atlantic Nynex Mobile, 

 Appellant 

APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. No. 97-cv-03408) 

District Judge: The Honorable Maryanne Trump Barry 

ARGUED JUNE 18, 1999 

BEFORE: NYGAARD, STAPLETON, and COWEN, 

Circuit Judges. 

(Filed November 19, 1999) 
 Thomas F. Campion, Esq. 

 Kenneth J. Wilbur, Esq. 

 Drinker, Biddle & Shanley 

 500 Campus Drive 

 Florham Park, NJ 07932-1047 

 Alison B. Brotman, Esq. (Argued) 

 Bell Atlantic NYNEX Mobile 

 180 Washington Valley Road 

 Bedminster, NJ 07921 

 Attorneys for Appellant 

 David L. Rutherford, Esq. (Argued) 

 141 Dayton Street 

 PO Box 5108 

 Ridgewood, NJ 07451 

 Attorney for Appellee 

OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

This appeal originates from a decision by the Zoning 

Board of Adjustment of the Borough of Ho-Ho-Kus, New 

Jersey denying an application by three cellular 

communication providers for variances necessary to build a 

wireless communications facility within the Borough. The 

providers claim that the Borough's decision violates section 

704 of the Telecommunications Act of 1996 because: 1) the 

Zoning Board unlawfully considered the quality of existing 

wireless service during the decision process; 2) its decision 

is not supported by substantial evidence; and 3) the 

decision has the effect of prohibiting personal wireless 

services. The providers also claim that the Zoning Board's 

decision violates New Jersey state zoning law. The District 

Court granted summary judgment in favor of the Zoning 

Board on all issues. We will affirm in part and reverse in 

part. 

I. Factual Background 

The parties have stipulated to the following facts, taken 

largely from the District Court's opinion. See Cellular Tel. 

 2 
Co. v. Zoning Board, 24 F. Supp. 2d 359 (D. N.J. 1998). 

Two of the providers, Cellular Telephone Company, d/b/a 

AT&T Wireless Services, and Cellco Partnership, d/b/a Bell 

Atlantic Nynex Mobile, are licensed by the Federal 

Communications Commission to provide wireless cellular 

telephone service to the Borough of Ho-Ho-Kus, New 

Jersey. SMART SMR of New York, Inc., d/b/a Nextel 

Communications, is licensed to provide wireless mobile 

radio services. On August 2, 1994, AT&T and the Borough 

entered into a lease for 2,350 square feet of Borough-owned 

property on which AT&T planned to construct a wireless 

telecommunications facility. The facility, as contemplated 

by the lease, would include a wireless communications 

monopole, associated antennae, and related equipment 

shelters, all of which would be surrounded by a security 

fence. Thereafter, Bell Atlantic and Nextel entered into colocation agreements with the Borough, authorized by the 

AT&T lease, allowing Bell Atlantic and Nextel to install their 

own antennae on the proposed monopole, and to utilize a 

portion of the accompanying equipment shelters. AT&T, 

Bell Atlantic and Nextel are referred to collectively 

throughout this opinion as the "providers." 

The AT&T lease was contingent upon the company 

acquiring all required zoning variances, special use permits 

and building permits. Although the proposed site is located 

in an R-2 residential zone, it is actually part of two larger 

lots (Lots 3 and 4 in Block 603 of the Borough of Ho-HoKus), which contain, among other things, the Department 

of Public Works' salt storage barn and accompanying

fencing, a motor vehicle fueling area, a public recycling 

center, and open storage for municipal equipment. The lots 

do not contain any residences. Two sides of the leased site 

border public roads, while a third abuts the New Jersey 

Transit railroad line. 

On September 3, 1994, the providers applied to the 

Borough's zoning official for variances necessary to 

construct three buildings, a 125-foot monopole with

antennae reaching as high as 127 feet, and a six-foot high 

barbed wire fence. The proposed monopole would be a

cylindrical galvanized steel structure measuring three feet 

in diameter at its base and eighteen inches at its top. The 

 3 
monopole would support twenty seven antennae, nine for 

each of the providers, in a 360o array. Maintenance

personnel would visit the site approximately once a month, 

but it would be otherwise unmanned. The zoning official 

denied the application. The providers then amended their 

application, reducing the number of equipment shelters 

from three to two, changing the layout of all planned 

improvements on the site, and lowering the security fence 

from six to five feet. The zoning official denied the amended 

application as well. 

The providers next brought both their original and 

amended applications before the Zoning Board of 

Adjustment, seeking thirteen variances from the Borough's 

zoning ordinance. On April 24, 1997, after two and a half 

years and forty-four public hearings, the Board voted to 

deny the applications. The Board then memorialized its 

decision in a thirty-six page resolution adopted on June 5, 

1997 (the "Resolution"). The Resolution concluded as 

follows: 

 [T]he public interest which will be served by the 

 proposed monopole is not substantial, as the quality of 

 cellular telephone service already being provided within 

 the Borough of Ho-Ho-Kus is adequate . . . . The Board 

 [also] finds that the site is inappropriate for that use, 

 given its already congested nature, and [the fact that] 

 numerous bulk variances are required, including one 

 related to the required setback of the structure from 

 the property lines. The Board also finds that the 

 construction of the monopole will have a substantially 

 detrimental impact upon the public good and the 

 purpose and intent of the zone plan and ordinance 

 based upon a significant detrimental visual impact, the 

 construction of such a massive structure on a 

 relatively tiny piece of property, and a significant 

 decline in real property values. The Board finds that 

 . . . the balance must be struck in favor of denying the 

 application. The public good being served is not 

 compelling. Due to the nature of the structure, no 

 conditions can be imposed that would reduce the 

 impact, and on balance the negative considerations 

 outweigh the benefits to be obtained. 

 4 
Resolution: Zoning Board of Adjustment, Borough of HoHo-Kus, June 5, 1997 at 35-36, reprinted in Brief for 

Appellant app. at A177-78. 

 833<!>On judicial review, the district court granted the 

Borough's motion for summary judgment, finding that the 

Board's denial did not have the effect of prohibiting 

personal wireless services, was supported by substantial 

evidence, and was based on a proper application of state 

zoning laws. The providers appealed. We exercise plenary 

review over the District Court's grant of summary 

judgment. See Doby v. DeCrescenzo, 171 F.3d 858, 867 (3d 

Cir. 1999). 

II. Discussion 

The providers first claim that the Board's decision has 

the effect of prohibiting personal wireless services in Ho-HoKus, and thus violates S 704 of the Telecommunications Act 

of 1996, codified at 47 U.S.C. S 332(c)(7). As part of this 

claim, the providers argue that the Board had no authority 

to consider the quality of existing personal wireless service 

when ruling on their applications. In the alternative, they 

argue that the Ho-Ho-Kus zoning ordinance, though facially 

neutral, effectively prohibits personal wireless services in 

violation of the Telecommunications Act. The providers also 

claim that the Board's denial violates the 

Telecommunications Act because it is not supported by 

substantial evidence. Finally, the providers claim that the 

Board's denial is invalid because it relies on a 

misapplication of applicable state zoning laws. 

A. Local Zoning Authority 

The Telecommunications Act expressly preserves local 

zoning authority over the placement, construction and 

modification of personal wireless service facilities. See 47 

U.S.C. S 332(c)(7)(A). Nevertheless, the statute subjects the 

exercise of local zoning authority1 to six limitations. First, 

_________________________________________________________________ 

1. The statute actually preserves the zoning authority of the states, 

local 

governments and instrumentalities thereof. We refer exclusively to "local" 

zoning authority for simplicity's sake only. 

 5 
local regulation may not unreasonably discriminate among 

providers of functionally equivalent wireless services. See 

id. S 332(c)(7)(B)(i)(I). Second, local regulation may not 

prohibit or have the effect of prohibiting the provision of 

personal wireless services. See id. S 332(c)(7)(B)(i)(II). Third, 

local regulators must act on placement, construction and 

modification applications within a reasonable period of 

time. See id. S 332(c)(7)(B)(ii). Fourth, all decisions denying 

a request to place, construct or modify a personal wireless 

services facility must be in writing and supported by 

substantial evidence contained in a written record. See id. 

S 332(c)(7)(B)(iii). Fifth, any person adversely affected by 

local regulators' final action on a placement, construction, 

or modification application may seek judicial review in any 

court of competent jurisdiction. See id. S 332(c)(7)(B)(v). 

Finally, the statute substantially limits the authority of 

local officials to regulate personal wireless facilities on the 

basis of the environmental effects of radio frequency 

emissions. See id. S 332(c)(7)(B)(iv). 

In the course of its long deliberations over the 

applications at issue, the Board received testimony and 

other evidence from both the providers and their opponents 

concerning the quality of existing personal wireless services 

in Ho-Ho-Kus. A radio frequency engineer for AT&T testified 

that there were various areas within the Borough where the 

quality of service was very poor, and other areas where the 

odds of actually being able to place or receive a call were so 

low as to render them essentially "no service" areas. See 

Transcript: March 9, 1995 Ho-Ho-Kus Board of Adjustment 

Hearing at 124-26, reprinted in Appellant's Brief app. at 

A438-40. Similarly, a radio frequency engineer for Bell 

Atlantic testified that his company's cellular service in the 

area was marginal at best, and generally unreliable. See 

Transcript: April 13, 1995 Ho-Ho-Kus Board of Adjustment 

Hearing at 109-11, reprinted in Appellant's Brief app. at 

A741-43. A Nextel engineer described his company's mobile 

radio service in the Borough as "almost non-existent." See 

id. at 169, reprinted in Appellant's Brief app. at A801. 

In response, two Ho-Ho-Kus residents presented tape

recordings they had made of twelve cellular telephone calls 

placed from various locations within the Borough. The 

 6 
recordings apparently demonstrated relatively good 

connection and transmission quality with respect to the 

twelve calls recorded, and the Board accepted them as 

competent evidence that existing wireless service as a whole 

was adequate. See Resolution: Zoning Board of Adjustment, 

Borough of Ho-Ho-Kus, June 5, 1997 at 13, reprinted in 

Appellant's Brief app. at A153; see also, Transcript: May 

23, 1996 Ho-Ho-Kus Board of Adjustment Hearing at 59- 

89, reprinted in Appellant's Brief app. at A1907-37. 

The providers challenged the evidentiary value of the tape 

recordings and pointed out that while the residents placed 

twelve calls, AT&T's tests included calls from approximately 

2,500 locations within the borough. Because AT&T 

conducted five such tests, the total data apparently 

included at least 12,500 calls. Underscoring further this 

dramatic difference in the sample size, the providers point 

out that of the residents' twelve calls, only two calls were 

placed from the worst service areas. The residents also 

made the calls in April when few trees had foliage, a 

significant source of interference; they called while 

stationary, again avoiding sources of interference; and all of 

their calls were made on a Saturday when demand was low, 

yet another variable affecting call performance. Finally, the 

residents only recorded the uplink, which is picked up by 

the more sensitive receiver at a cellular facility and 

transmitted to a land-line phone. They did not record the 

more problematic downlink that a cellular phone receives 

from its much less sensitive antenna. Evidence produced 

from the providers' own test calls indicated that most 

suffered from some form of technical difficulty. 

After weighing the conflicting evidence, the Board 

concluded that the quality of existing cellular service within 

the Borough and surrounding area was sufficient, and that 

there was therefore no legitimate need for the proposed 

monopole. See Resolution of the Zoning Board of 

Adjustment, Borough of Ho-Ho-Kus, June 27, 1997 at 25, 

reprinted in Appellant's Brief app. at A165. The providers 

argue, however, that local authorities are barred from 

considering quality of service issues when determining 

whether and where to permit wireless communication 

facilities within their jurisdictions. They contend that the 

 7 
comprehensive body of federal law regulating the 

telecommunications industry effectively, if not expressly, 

preempts local authorities from regulating the quality of 

personal wireless services. They further contend that 

because judging the quality of wireless services does not 

concern the physical location and construction of cellular 

facilities, it is not a legitimate exercise of zoning power, but 

rather an unlawful intrusion upon the Federal 

Communications Commission's exclusive regulatory 

authority. 

As an initial matter, we reject the proposition that local 

zoning authorities are wholly barred from considering the 

quality of existing personal wireless service. Obviously, local 

officials must, at a minimum, consider whether wireless 

service currently exists within their jurisdictions if they are 

to determine whether rejecting a proposed wireless 

communications facility would have the effect of prohibiting 

such service. The providers contend, however, that allowing 

local officials to go beyond this threshold consideration, 

and to reject wireless communication facilities based on 

their own evaluation of existing service, would undermine 

the Telecommunications Act's twin goals of encouraging 

rapid deployment of new technologies and providing 

nationwide seamless cellular service to the public.

Contrary to the providers' arguments, we conclude that 

barring all local quality-of-service considerations could just 

as easily undermine the Telecommunications Act's goals as 

further them. Decisions to grant or deny variances from 

local zoning ordinances generally require local officials to 

balance the interests that will be affected by the decision. 

Indeed, New Jersey law specifically mandates such a

balancing approach. Obviously, one of the interests affected 

by a decision to grant or deny a variance necessary to 

construct a wireless communications facility is the quality 

of existing wireless services. A finding that existing service 

is relatively poor could tip the scale in favor of granting a 

variance that, absent consideration of current quality, 

might otherwise be denied. 

In so holding, we do not suggest that the discretion of 

local officials is unlimited. The Telecommunications Act 

imposes a number of explicit restrictions on the exercise of 

 8 
local zoning authority. For instance, determinations 

concerning the quality of existing service must be based on 

substantial, competent evidence and remain subject to 

judicial review. Additionally, although the 

Telecommunications Act does not divest local officials of 

any authority they may have to consider the quality of 

existing wireless services, neither does it create such 

authority. Efforts to assess existing quality, and to weigh 

the benefits of enhancing it against the possible costs, must 

be authorized by and performed within the parameters of 

governing state and local law. 

Finally, as the Telecommunications Act itself dictates, 

local officials must always ensure that neither their general 

policies nor their individual decisions prohibit or have the 

effect of prohibiting personal wireless services. We interpret 

this mandate to mean more than simply ensuring that

personal wireless services are available somewhere within 

the relevant jurisdiction, even if they are not available 

throughout. Thus, we conclude, as did the court in Sprint 

Spectrum, L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999), 

that local zoning policies and decisions have the effect of 

prohibiting wireless communication services if they result 

in "significant gaps" in the availability of wireless services. 

Building on the Willoth court's analysis, we conclude that 

there is a "gap" in personal wireless services when a remote 

user of those services is unable either to connect with the 

land-based national telephone network, or to maintain a 

connection capable of supporting a reasonably 

uninterrupted communication. See id. at 641-43. We do not 

attempt here to define what constitutes a "significant" gap 

in local wireless services.2 Rather, we will leave it for the 

_________________________________________________________________ 

2. There may be any number of factors that a reviewing court may find 

it necessary to consider when determining whether a significant gap 

exists, and we make no attempt to enumerate them here. We think it 

matters a great deal, however, whether the "gap" in service merely covers 

a small residential cul-de-sac or whether it straddles a significant 

commuter highway or commuter railway. Unlike a utility such as 

electrical power, cellular service is used in transit, so a gap that 

covers 

a well-traveled road could affect large numbers of travelers--and the 

people who are trying to communicate with them. Over the course of a 

year, the total disruption caused could be quite significant. Here the 

 9 
district court to determine, if necessary, whether there is a 

significant gap in service and, if so, whether there are any 

less intrusive means for closing that gap. 

B. The Effect of the Ho-Ho-Kus Zoning Ordinance 

As previously noted, construction of the proposed 

wireless communications facility at the center of this case 

would require thirteen variances from the Zoning Ordinance 

of the Borough of Ho-Ho-Kus. The Ordinance, for example, 

limits the height of radio and television antennae to 50 feet, 

while the proposed monopole and antennae would be 127 

feet high. The Ordinance also includes a "fall down zone" 

provision that requires the distance between the monopole 

and all adjacent property lines to be at least as far as the 

monopole is high. The proposed monopole, however, would 

stand just 4.25 feet from one adjoining property line and 

26.42 feet from another. 

The providers argue that because wireless 

communication antennae must be located above the tree 

line, a 50-foot height restriction in a locality such as HoHo-Kus, where the prevailing tree line is 70 feet, amounts 

to an effective ban on wireless facilities. Similarly, they 

argue that because the fall-down provision limits their 

proposed facility to sites containing a minimum of 

1-1/2 acres in a town where there is virtually no open 

space, it too has a prohibitory effect. These arguments 

fail to address the central issue, however. The 

Telecommunications Act bars local regulation that prohibits 

or has the effect of prohibiting personal wireless services, 

not the facilities that provide those services. Under the right 

conditions, it may be possible to provide an adequate level 

of personal wireless services to a particular community 

solely through facilities located outside that community. We 

_________________________________________________________________ 

proposed tower will be installed next to a railway and several roads that 

the cellular companies described as significant commuter routes. 

According to the cellular companies' data, signal strength on Route 17, 

as it passed through Ho-Ho-Kus, fell well below what the companies say 

is acceptable service. We suggest the district court consider such factors 

in determining what constitutes a significant gap in service. 

 10 
are not prepared to hold that every community must permit 

wireless communication facilities somewhere within its 

borders regardless of the need for such facilities, nor do the 

facts of this case require us to decide the issue now. 

The issue here is whether the Board's rejection of the 

proposed wireless communication facilities has the effect of 

prohibiting personal wireless services. The providers 

acknowledge that some level of personal wireless service 

currently exists in Ho-Ho-Kus, although the level of service 

provided by each ranges from spotty to unreliable to nonexistent. For its part, the Board has assessed the quality of 

existing service and determined that the improvements 

offered by the proposed facility are outweighed by its 

negative impact on the community. In assessing overall 

quality, however, the Board never specifically determined 

whether there are significant gaps in the current service. 

Consequently, we will reverse the district court's summary 

judgment on the issue of prohibitory effect. 

While we have held that local officials are not barred from 

considering the quality of existing wireless service and, in 

the first instance at least, whether there are any significant 

gaps in that service, we note that their findings on this 

issue are not reviewed under the substantial evidence 

standard. That standard applies only to decisions denying 

requests for authorization to place, construct or modify 

personal wireless facilities. In contrast, the statutory bar 

against regulatory prohibition is absolute, and does not 

anticipate any deference to local findings. See 47 U.S.C.A. 

S 332(c)(7)(B)(i)(II). Because we believe the communication 

providers have presented evidence that there may be

significant gaps that only the proposed facility can close, we 

will reverse summary judgment on the issue of prohibitory 

effect. 

C. The Substantial Evidence Challenge 

The Telecommunications Act requires that any decision 

denying a request to place, construct, or modify personal 

wireless service facilities be in writing and supported by 

substantial evidence contained in a written record. See 47 

U.S.C. S 332(c)(7)(B)(iii). Substantial evidence "does not 

 11 
mean a large or considerable amount of evidence,`but 

rather such evidence as a reasonable mind might accept as 

adequate to support a conclusion.' " Pierce v. Underwood, 

487 U.S. 552, 565, 108 S. Ct. 2541, 2550 (1988) (quoting 

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. 

Ct. 206, 217 (1938)); see also Omnipoint Corp. v. Zoning 

Hearing Bd, 181 F.3d 403, 408 (3d Cir. 1999). A reviewing 

court's task is to determine whether there is substantial 

evidence in the record as a whole to support the challenged 

decision. See Universal Camera Corp. v. NLRB, 340 U.S. 

474, 491, 71 S. Ct. 56 (1951). It has no power either to 

weigh the evidence contained in that record or to substitute 

its own conclusions for those of the fact-finder. See 

Williams, 970 F.2d at 1182. Nevertheless, if the record as a 

whole contains conflicting evidence, the fact-finder must 

adequately explain its reasons for rejecting or discrediting 

competent evidence. See Benton v. Bowen, 820 F.2d 85, 88 

(3d Cir. 1987). 

In the context of S 332(c)(7)(B)(iii), the decision process 

itself is governed by applicable state and local zoning laws. 

The reviewing court's task is to determine whether the 

decision, as guided by local law, is supported by 

substantial evidence. See Omnipoint Corp., 181 F.3d at 408. 

Under New Jersey law, local zoning officials must weigh the 

positive and negative factors associated with a requested 

zoning variance and determine whether, on balance, those 

factors weigh in favor of granting or rejecting the request. 

Thus, the reviewing court's task is to determine whether 

the findings of local officials concerning the positive and 

negative factors, and their relative weight, is supported by 

substantial evidence. 

The providers do not claim that the record, as a whole, 

lacks substantial evidence to support the Board's decision. 

Rather, they challenge two of the Board's specificfindings 

as being unsupported by substantial evidence. First, they 

challenge the Board's finding that existing personal wireless 

service is adequate, arguing that it is based on incompetent 

evidence. Second, the providers challenge the Board's 

finding that the proposed monopole would have a 

substantial detrimental impact on the value of surrounding 

properties. Again, they argue that the Board's detrimental 

impact finding relies on incompetent evidence. 

 12 
During the public hearings held to consider the proposed 

wireless communications facility, the Board heard from 

three experts who testified about the proposed monopole's 

economic impact on surrounding properties. The providers 

presented two experts who testified that the monopole 

would have no detrimental economic impact, while their 

opponents presented one expert who testified to the

contrary. The providers' experts relied, at least in part, on 

their conclusions that the very visible presence of

telecommunications towers in other New Jersey 

communities had had no discernable effect on the value of 

nearby upscale homes. These experts reasoned that if the 

visibility of communications towers had no effect on the 

"high-end" homes they had studied, it would not adversely 

effect the value of the more moderately priced homes found 

in Ho-Ho-Kus. The opponent's expert disagreed. Relying on 

a "paired-sales" analysis (i.e., comparing the sale price of a 

home from which a communications tower was visible to 

the sale price of a similar home from which no tower was 

visible) he presented evidence tending to show that the 

proposed monopole would, in fact, adversely impact the 

value of some Ho-Ho-Kus homes. 

After hearing all the evidence, the Board chose to give 

greater credence to the opponents' expert than to the 

providers' experts. The Board explained that it favored the 

opponents' expert in part because the communities studied 

by the providers' experts were not sufficiently similar to HoHo-Kus, and in part because the opponents' expert's

paired-sales methodology was superior to the logical 

extrapolation on which the other experts had relied. 

On appeal, the providers challenge the scientific validity 

of the opposing expert's study. They argue that it included 

too few samples and too many subjective adjustments for 

factors other than the visibility of nearby communication 

towers that may have explained differences in sales price. 

They also note that the paired sales considered by the 

opponents' expert occurred in one of the very same towns 

the providers' expert had studied. When evaluating the 

providers' evidence, the Board concluded that 

dissimilarities between the studied town and Ho-Ho-Kus 

rendered the evidence unreliable. Yet, in concluding that 

 13 
the opposing evidence was more reliable, the Board did not 

address the issue of community dissimilarities at all. The 

providers argue that the Board cannot have it both ways, 

and that if the claimed dissimilarities render their evidence 

unreliable, they must render the opposing evidence 

unreliable as well. 

While acknowledging the theoretical possibility that 

dissimilarities between two towns could render a 

comparative study based on one methodology less reliable 

than a study based on another, wholly different 

methodology, we are not certain how that would be true in 

this case. In any event, the Board did not discount the 

providers' evidence solely on the basis of dissimilarities 

between the relevant towns, but also because it found that 

the opposing evidence was based on a more reliable 

methodology. The only issue is whether it was reasonable 

for the Board to do so. We conclude that it was. Moreover, 

our decision does not turn on any single factor that the 

Board may have found weighed against approving the 

proposed facility. The Board considered a number of other 

factors, including the proposed facility's purely aesthetic 

impact on surrounding properties and the adverse effects 

approval would have on the purpose and intent of the 

Borough's zone plan and ordinance. The district court 

ruled, and we agree, that the Board's findings with respect 

to these other negative factors were supported by 

substantial evidence. 

The providers also claim that there is no substantial 

evidence to support the Board's finding that existing 

personal wireless service in the Borough is adequate. As 

discussed in part II-A of this opinion, supra, the providers 

presented the testimony of three separate experts 

concerning the various inadequacies of their respective 

services. Two local residents opposed to the proposed 

facility presented tape recordings of twelve cellular 

telephone calls they made from various locations within the 

Borough. The opponents claimed, and the Board agreed, 

that the tape recordings demonstrated a level of existing 

service "sufficient to properly serve the public good." See 

Resolution at 25, reprinted in Appellant's Brief app. at 

A165. In reaching that conclusion, the Board also relied on 

 14 
the providers' admission that there were no "no-service" 

areas3 within the Borough, and only three areas where the 

chances of getting a "no-service light"4 were very high. 

The district court found, as do we, that the tape 

recordings made by non-expert local opponents of the 

proposed facility were too insubstantial to discredit the 

expert testimony presented by the providers. Nevertheless, 

the district court upheld the Board's decision,finding that 

the "plaintiffs' own expert witnesses testified--at best -- 

only that there were some gaps in service within the 

Borough, not that service is unavailable." Cellular

Telephone Company v. Zoning Bd. Of Adjustment, 24 F. 

Supp. 2d 359, 372 (E.D. Pa. 1998). Holding as we do that 

the district court must determine whether those service 

gaps are significant, we cannot agree that the expert 

testimony in this record supports a finding that existing 

wireless service within the Borough is adequate. 

Moreover, our own review of the record indicates that the 

Board either misunderstood or mischaracterized the expert 

testimony on the issue of existing service. During the public 

hearings, the providers' experts rated the quality of existing 

wireless services in the Borough using an industry 

standard scale ranging from one to five. They testified that 

a five represents land-line quality service, meaning 

participants in a cellular telephone call will not hear any 

background static. At level four, there may be some static, 

but the conversation is basically unimpeded. At level three, 

static is constant and can impede conversation to the point 

of making individual words unintelligible. At level two, 

whole sentences are lost and intelligible conversation 

requires constant repetition and clarification. At level one, 

service is essentially non-existent because even though a 

connection may be made, any conversation would be 

unintelligible. See Transcript: April 13, 1996 Ho-Ho-Kus 

_________________________________________________________________ 

3. A "no-service" area is an area in which it is not possible to establish 

a cellular connection at any time, under any circumstances. 

4. In contrast to a "no-service" area, a "no-service light" on a cellular 

telephone simply informs the user that she cannot establish a 

connection at that particular time, under the then existing calling 

conditions. 

 15 
Board of Adjustment Hearing at 114-115, reprinted in 

Appellant's Brief app. at A750-51. 

Though the voluminous record produced during the 

Borough's 44 public hearings is somewhat difficult to 

parse, the providers' experts appear to have rated existing 

wireless service in Ho-Ho-Kus at level three for installed 

mobile phones (i.e., car phones), and somewhere between 

levels one and two for hand-held portable phones. See id. 

at 116, reprinted in Appellant's Brief app. at A749. Thus, it 

may be factually correct that there are no "no-service" areas 

and only three areas in which cellular service users face a 

high likelihood of getting a "no-service" light. But there is 

also substantial, unrefuted evidence in the record that even 

if a cellular caller is able to make a connection from certain 

locations, any subsequent attempt at conversation will be 

difficult at best, and virtually impossible for users of the 

hand-held portable phones that dominate the market today. 

Thus, based on this record, we conclude that there is no 

substantial evidence to support the Board's conclusion that 

the current level of personal wireless service in Ho-Ho-Kus 

is adequate. 

While the Board considered several factors that weighed 

against approval, the only factor it considered with the 

potential to weigh in favor of approving the proposed facility 

was the adequacy of existing service. In other words, absent 

a finding that existing service was inadequate, or that the 

public would benefit by enhancing that service, any

negative factor, no matter how slight, would have tipped the 

balance in favor of rejection. Because the Board'sfinding 

that existing service is adequate is not supported by 

substantial evidence, we will reverse the district court's 

summary judgment on this issue. 

D. State Zoning Law 

In New Jersey, the power of zoning boards of adjustment 

to grant variances is prescribed by state statute. See N.J. 

STAT. ANN. S 40:55D-70 (West Supp. 1999). Under that 

statute, a board's power to grant certain variances, 

including a conditional-use variance, from the local zoning 

ordinance is subject to certain limitations. Two are relevant 

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here. First, there must be "special reasons" for granting the 

variance. Id. S 40:55D-70(d). Second, the local board may 

not grant a variance without a showing that it "can be 

granted without substantial detriment to the public good 

and will not substantially impair the intent and the 

purpose of the zone plan and zoning ordinance." Id. New 

Jersey's courts refer to these limitations as creating 

"positive" and "negative" criteria that must be satisfied 

before a variance can be granted. See Sica v. Board of 

Adjustment, 127 N.J. 152, 156, 603 A.2d 30, 32 (N.J. Sup. 

Ct. 1992). If the proposed use is deemed "inherently 

beneficial," the positive criteria requirement is 

automatically satisfied. Nevertheless, once the positive and 

negative criteria are established, they must still be 

balanced against one another. See id. at 164, 603 A.2d at 

36-37. 

The New Jersey Supreme Court has provided local boards 

with a four step procedure for balancing positive and 

negative criteria. First, the board should identify the public 

interest at stake and determine, in the general scheme of 

public importance, whether or not it is compelling. Second, 

the board should identify the detrimental effects of granting 

the variance and determine whether they are only minimal 

or more severe. Third, the board should reduce any 

detrimental effects, if possible, by imposing reasonable 

conditions on the proposed use. Finally, the board should 

weigh the positive against the negative criteria and 

determine whether, on balance, granting the variance 

would be a substantial detriment to the public good. See id. 

at 165-66, 603 A.2d at 37. 

The providers raise several challenges to the Board's 

balancing of the positive and negative criteria in this case. 

First, they claim that in evaluating the positive criteria, the 

Board erroneously focused on the proposed facility's 

deviations from the relevant conditions imposed by the 

zoning ordinance. In their view, the positive criteria issue 

turns on the particular benefits of placing the facility at the 

proposed site, not on the extent to which it deviates from 

applicable zoning conditions. We disagree. 

In Coventry Square, Inc. v. Westwood Zoning Bd. of 

Adjustment, 138 N.J. 285, 650 A.2d 340 (1994), the New 

 17 
Jersey Supreme Court held that the standard for 

establishing the "positive" criteria required under New 

Jersey zoning law depends on the type of variance at issue. 

Where, as here, a variance is necessary to permit a nonconforming conditional use, the applicant need only prove 

that the site continues to be suitable for the proposed use 

despite its failure to comply with one or more conditions. 

See id. at 298-99, 650 A.2d at 346-47. The Coventry court 

explained that: 

 [the conditional-use] standard of proof will focus both 

 the applicant's and the board's attention on the specific 

 deviation from conditions imposed by the ordinance, 

 and will permit the board to find special reasons to 

 support the variance only if it is persuaded that the 

 non-compliance with conditions does not affect the 

 suitability of the site for the conditional use. 

Id. at 298-99, 650 A.2d at 346-47. Thus, satisfying the 

positive criteria for a non-conforming conditional use 

appears to turn on its deviation from the applicable 

conditions, not on the benefits of locating it at the proposed 

site. Nevertheless, New Jersey law still required the Board 

to consider the benefits of the proposed facility at the 

balancing stage of its analysis. The record clearly shows 

that the Board did so, and that it found the benefits of 

locating the proposed facility at the proposed site to be 

outweighed by the negative consequences. 

The providers' remaining challenges are essentially

derivative of the Telecommunications Act claims that we 

have already resolved. First, they claim that the Board 

erroneously dismissed expert testimony that the proposed 

monopole would have no detrimental impact on the value of 

surrounding homes, and thus gave too much weight to the 

negative criteria. We have already held that the Board's 

findings on this issue were supported by substantial 

evidence. Second, they renew their claim that the Board 

had no authority to evaluate the quality of existing wireless 

service, much less determine that it is adequate, and to 

discount the positive criteria accordingly. Again, we have 

already held that the Board was not barred from evaluating 

the quality of existing wireless service, though its discretion 

in that area is subject to limitations. Finally, the providers 

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claim that the Board's assessment of existing wireless 

service, and thus the weight given to the positive criteria, is 

erroneous because it improperly dismisses expert 

testimony, and relies instead on incompetent evidence. As 

we have already noted, we agree with the providers on this 

point. Consequently, we must reverse the district court's 

summary judgment on the communication provider's state 

law claim. If, on remand, the Board reaches the balancing 

stage, it must adjust the weight given to the positive criteria 

(i.e., the public benefit of enhancing personal wireless 

services in and around Ho-Ho-Kus) based on a proper

evaluation of existing service, and in compliance with 

applicable state law. 

III. Conclusions 

In sum, we reverse the district court's summary 

judgment on both the Telecommunications Act and state 

law claims. We affirm its ruling that the Board was not 

barred from considering the quality of existing personal 

wireless service, and that its findings regarding the 

proposed monopole's economic impact on surrounding 

properties was supported by substantial evidence. We also 

conclude that the Board correctly identified the factors 

affecting the positive criteria necessary to approve a 

conditional-use variance under New Jersey law. 

We remand to the district court with instructions that it 

remand for the Board to reconsider the proposed facility in 

compliance with this opinion. In doing so, we note that the 

Telecommunications Act requires the Board to act"within 

a reasonable period of time." 47 U.S.C. S 332(c)(7)(B)(ii). We 

also note that the Board took two-and-a-half years to reach 

a final decision on the providers' original request to build 

the proposed facility. The extensive record developed during 

prior proceedings should significantly streamline the 

process of reconsideration, and any undue delay in 

reaching a decision could justify injunctive relief in favor of 

the providers. 

If, after reconsideration, the Board approves the proposed 

facility, this matter will have reached its final end. If, 

however, the Board rejects the proposed facility for a 

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second time, its decision will remain subject to 

nondeferential review under the "effect of prohibiting" 

standard. The district court will then have to determine 

whether there are any significant gaps in existing personal 

wireless services. If significant gaps exist, the court must 

then determine whether the proposed facility willfill those 

gaps. We think it worth noting, however, that the 

Telecommunications Act does not abrogate local zoning 

authority in favor of the commercial desire to offer optimal 

service to all current and potential customers. Hence, if the 

district court ultimately finds significant gaps in existing 

service, the providers still bear the burden of proving that 

the proposed facility is the least intrusive means of filling 

those gaps with a reasonable level of service. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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