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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

T-MOBILE NORTHEAST LLC (f/k/a 

Omnipoint Communications Inc.),

Plaintiff,

v.

Borough of Leonia Zoning Board of 

Adjustment,

Defendant.

 

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Civil Action No. 11-2341 (SDW) (MCA)

OPINION

January 10, 2013

WIGENTON, District Judge.

Before the Court is plaintiff T-Mobile Northeast LLC’s (“T-Mobile” or “Plaintiff”) 

Motion for Summary Judgment, pursuant to Fed. R. Civ. P. 56(c) (“Motion”), in this matter,

versus defendant Borough of Leonia Zoning Board of Adjustment (“Board,” “Borough,” or 

“Defendant”). 

This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a). Venue is proper pursuant to 

28 U.S.C. § 1391. This matter is decided without oral argument pursuant to Fed. R. Civ. P. 78. 

For the reasons stated below, this Court grants Plaintiff’s Motion.

FACTUAL AND PROCEDURAL HISTORY

T-Mobile is a wireless telecommunications service provider licensed by the Federal 

Communications Commission (“FCC”). (Pl. Statement of Material Facts (“SOF”)

1 at ¶ 1.) In 

order to provide wireless service, T-Mobile creates and maintains a network of digital “cell 

sites.” (SOF at ¶ 2.) The cell site signal coverage overlaps in a grid pattern, maximizing cell 

 1 The SOF item that was opposed by Defendant is paragraph 58. (Def.’s Opp’n 2.)

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phone service areas for consumers. (Id.) In geographic locations where there are no cell sites, 

there is no T-Mobile service for users. (Id.)

T-Mobile has developed a signal “network design standard” identifying the level of radio 

frequency, and the necessary signal capacity, to serve their users. (SOF at ¶¶ 3, 6.) T-Mobile 

used computer modeling, a cell signal propagation study and field testing to determine that they 

had a significant gap in service in the Borough of Leonia. (See SOF at ¶¶ 10-11, 26-28.) TMobile’s expert, Richard Conroy (“Conroy”), determined that the gap in coverage “[e]xtends 

approximately 0.36 mile east, 0.37 mile southeast, 0.2 mile south, 0.24 mile southwest, 0.27 mile 

west and 0.36 mile northwest” of T-Mobile’s proposed site for antenna installation, 222 Christie 

Street, Leonia, New Jersey (the “Building”). (Pl. Ex. A, Conroy Report ¶ 3.) Plaintiff asserts 

that the coverage gap “is more than a mere few blocks and larger than a few dead spots,” and, if 

addressed, Plaintiff could service approximately 2,009 additional residents, as well as vehicular 

traffic in the area. (SOF at ¶¶17-21.)

On or about March 5, 2009, T-Mobile submitted an application to the Defendant for a use 

variance, and for approval to collocate antennas and equipment at the apartment Building located 

at 222 Christie Street in Leonia (the “Building”). (See SOF at ¶¶ 12-13.) The Building is the 

tallest building in Leonia. (Pl. Ex. A, Avin Report, 5.) It is located in the “B Multi-Family 

Dwelling” zone. (See Pl. Ex. L, Borough of Leonia Zoning Board of Adjustment Resolution,

(“Resolution”) ¶ 4.)

Specifically, T-Mobile sought to collocate eight antennas directly to the exterior of the 

Building and install three equipment cabinets in the Building’s courtyard (collectively, the 

“Proposed Facilities”). (See SOF at ¶ 13.) The use variance is required because the Building is 

in a “B Multi-Family Zone,” and the height of the Proposed Facilities would exceed that allowed 

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by the zoning ordinance, Borough of Leonia, N.J., Code §§ 102-9, 290-82(D). (SOF at ¶¶ 56-

57.) The Proposed Facilities would be mounted directly onto the Building, and the three cabinets 

would be located on the ground in the Building’s courtyard and would be hidden from public 

view. (SOF at ¶¶ 13, 52-54.)

T-Mobile’s wireless communications competitor, Sprint, has placed antennas and other 

equipment on top of the Building where the Proposed Facilities would be located. (SOF at ¶ 

118-19.) In 2003, the Borough denied Sprint’s application to place antennas and other facilities 

on the Building. (SOF at ¶ 120.) After Sprint sought judicial review of the denial, a ruling by 

the Superior Court of New Jersey, Appellate Division, in Sprint Spectrum, L.P. v. Zoning Board 

of Adjustment of the Town of Leonia, 360 N.J. Super. 373 (2003), permitted Sprint to locate its 

antennas on the Building. (SOF at ¶ 120-21.) Sprint currently has several antennas mounted on 

the Building exterior in the same way T-Mobile intends to install its own facilities. (See SOF at 

¶¶ 122-25.) Sprint’s antennas and equipment cabinets extend above the roofline of the Building. 

(See SOF at ¶ 124-26.) Sprint’s wireless equipment extends higher above the roofline than TMobile’s Proposed Facilities will. (See SOF at ¶ 126.)

At T-Mobile’s application hearing, the Borough’s consultant, Bernard Nelson (“Nelson”), 

acknowledged the existence of a gap in T-Mobile’s coverage, but disagreed about the size of the 

gap. (See SOF at ¶ 37; Pl. Ex. I at 1.) According to Nelson, T-Mobile’s opinion about the size 

of its gap is based on its expert’s map of a lack of stronger-than-needed signal strength that 

sufficiently serves more of Leonia than Plaintiff claims. (See Pl. Ex. I at 1.) James Bach

(“Bach”), who was Chairman of the Board at the time of the application hearing, acknowledged 

that there was a need for T-Mobile’s gap in coverage to be filled and that no permitted sites 

satisfied the need. (See SOF at ¶ 38.) However, Defendant’s expert, Nelson, opined that 

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locating the Proposed Facilities at the Building would only remedy approximately 60% of the 

gap and additional sites would be needed for the other 40%. (See Pl. Ex. I at 2.) 

In satisfaction of the applicable zoning ordinance requirements, T-Mobile conducted an 

investigation of alternate cell site locations. (SOF at ¶¶ 39-41.) T-Mobile did not consider the 

three alternate locations investigated to be appropriate alternatives because each required that 

new structures be built, or the potential wireless signal would not adequately cover the gap.

2 (See 

SOF at ¶¶ 42-48.)3

 T-Mobile further determined that there were no appropriate pre-existing 

structures that were at least 300 feet from a school, no sites outside of the Borough that would 

cover the coverage gap, and no alternate available sites that are zoned to permit cell towers. (See 

SOF at ¶¶ 49-51.)

The Board held eight public hearings from April 27, 2009, to December 16, 2010,

concerning T-Mobile’s application. (See SOF at ¶ 59.) At the April 22, 2010 hearing, Plaintiff’s 

expert, William Masters (“Masters”), testified that T-Mobile’s proposed use satisfies the criteria

of New Jersey’s zoning laws. (See generally, Pl. Ex. E.) At the Board’s November 18, 2010 

hearing, the Board’s planning expert, Christine Cofone (“Cofone”), testified regarding the 

Proposed Facilities and the Building. (Id.)

On March 24, 2011, the Board passed a Resolution denying T-Mobile’s application. (See

Resolution; Pl. Ex. L.) The Resolution listed the non-conforming conditions and provided that 

T-Mobile’s application was denied because:

the proposed telecommunications antennas and related equipment cabinets would 

constitute a nonconforming commercial use in a residential zone in violation of 

 2 The three sites were: 1) property owned by the Department of Public Works approximately 1.2 miles northwest of 

the gap; 2) property in the LI Zone approximately one mile northwest of the gap; and 3) property in the P1/P3 Zone 

approximately 0.6 mile west of the gap. (SOF at ¶¶ 43, 45, 47.) 3 Alternative site “A,” the “DPW Property,” purportedly “provides no coverage to the area of the gap planned to be 

filled” by the Building. (Pl. Ex. A, Conroy Report ¶ 23.) Alternative site “B,” the “LI Zone” property, also 

“provides no coverage.” (Id.) Alternative “C,” the “P1/P3 Zone” property would provide coverage to a portion of 

the gap that is a mere 1/10th mile in length. (Id.)

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ordinance section 290-19, the placement of the antennas on the exterior of the 

building would result in encroachments into the required yard setbacks in 

violation of ordinance section 290-20, and because the height of the proposed 

antennas and related equipment would exceed the maximum height of two (2) 

stories/25 feet permitted by ordinance section 290-20; and . . . . the proposed 

installation would also be contrary to the provisions of ordinance section 102-

9H(1) which only permits wireless telecommunications antennas on existing 

structures or rooftops on an existing business, industrial, office, utility or 

institutional structure located on Broad Avenue to Park Avenue (north side) to the 

south side of Woodridge Avenue and 200 feet east or west on Broad Avenue 

except within 300 feet of a school, and/or ordinance section 102-9A which 

restricts placement of wireless communication antennas to freestanding tower 

monopoles in the P zone district abutting the OB Office Building zone and at the 

Leonia DPW facility located at Block 103, Lots 2 and 3[.]

(Resolution at 1-2.) The Resolution also stated “that the proposed site meets the requirements of 

the Applicant as it fills the gap or deficiency in its service area . . . [but] that the site only 

partially fills the existing coverage gap.” (Resolution at ¶ 23.) The Board considered the expert 

opinions on signal coverage contradictory. (See Id.) The Board additionally concluded that

granting T-Mobile a variance would not “benefit the community. . . [,] and that “alternate, less 

intrusive sites are available within the Borough.” (Resolution at ¶ 29.) The Board stated that the 

“other locations to the south and east would be better suited to more completely fill the coverage 

gap[,]” although specific locations were not noted. (Resolution at ¶ 28.)

LEGAL STANDARD

Summary judgment shall be granted “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). A factual dispute is genuine if a reasonable jury could return a verdict for the nonmovant, 

and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party must show that if the 

evidentiary material of record were reduced to admissible evidence in court, it would be 

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insufficient to permit the nonmoving party to carry its burden of proof. See Celotex Corp. v. 

Catrett, 477 U.S. 317, 322-23, 327 (1986).

Once the moving party meets the initial burden, the burden then shifts to the nonmovant 

who must set forth specific facts showing a genuine issue for trial and who may not rest upon the 

mere allegations or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 

2001). The court may not weigh the evidence and determine the truth of the matter; it must 

instead determine whether there is a genuine issue as to a material fact. Anderson, 477 U.S. at 

249. In doing so, the court must construe the facts and inferences in a light most favorable to the 

nonmoving party. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (internal 

citation omitted). The nonmoving party “must present more than just ‘bare assertions, 

conclusory allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. 

U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). If 

the nonmoving party “fails[s] to make a sufficient showing on an essential element of [its] case 

with respect to which [it] has the burden of proof,” then the moving party is entitled to judgment 

as a matter of law. Celotex Corp., 477 U.S. at 323.

DISCUSSION

Plaintiff argues that summary judgment should be granted in its favor because the 

Board’s denial of Plaintiff’s application violates limitations set forth in Section 332(c)(7)(B) as 

follows: 1) the Board’s decision unreasonably discriminated against the Plaintiff under the 

Telecommunication Act of 1996 (the “TCA”); 2) the Board’s denial of Plaintiff’s application has 

the effect of prohibiting wireless service, in violation of the TCA; and 3) the Board’s denial is 

not supported by substantial evidence in the record. (See Pl. Br. at 14, 17, 29.) These points are 

discussed below.

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1. Whether Defendant’s decision unreasonably discriminates against Plaintiff

“The TCA does not prohibit all discrimination against providers, only unreasonable 

discrimination.” Omnipoint Commc’ns Enters. v. Zoning Hearing Bd. of Easttown Twp., 331 

F.3d 386, 395 (3d Cir. 2003) (citation omitted). “The regulation of the placement, construction, 

and modification of personal wireless service facilities by any State or local government or 

instrumentality thereof. . . shall not unreasonably discriminate among providers of functionally 

equivalent services[.]” Ogden Fire Co. No. 1 v. Upper Chichester Twp., 504 F.3d 370, 392 (3d 

Cir. 2007) (internal citation and quotations omitted). To prevail on an unlawful discrimination 

claim under Section 332(c)(7)(B)(i)(I) of the TCA, a wireless telecommunications service 

provider must prove that: 1) its services are “functionally equivalent” to those of another 

provider allowed to install facilities at a location; and 2) the governmental body “unreasonably 

discriminate[d] among providers.” Id. (quoting Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 267 

(3d Cir. 2002). That is, it is considered unlawful discrimination where the “municipality favors 

one provider by permitting it to locate in a particular area at the exclusion of others, thereby 

creating unfair competitive advantage.” Nextel W. Corp. at 267. 

A wireless service provider can meet the first prong of the unreasonable discrimination 

test by establishing that its services are “functionally equivalent” to those of another provider 

allowed to install facilities at a location. See Ogden Fire Co. No. 1, 504 F.3d at 392. This first 

prong focuses on “the telecommunications services the entity provides, not on the technical 

particularities (design, technology, or frequency) of its operations.” Id. (internal citation and 

quotations omitted). In Ogden Fire Co. No. 1, Ogden Township did not allow Sprint to build a 

tower, but had previously allowed Metro Phone to build a tower. Id. at 392-93. The residential 

areas surrounding Metro Phone’s location were comparable to Sprint’s proposed location, and 

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the zoning was identical. Id. at 394. Accordingly, the court found “that although Metro Phone, 

like Sprint, is a provider of wireless communications services, it was treated differently than 

Sprint.” Id. Thus, the Third Circuit held that the wireless service provider (Sprint) satisfied the 

first prong of the unreasonable discrimination test. Id.

A wireless service provider can meet the second prong of the TCA test, unreasonable 

discrimination among providers, by demonstrating that the “[existing] provider is similarly 

situated, i.e., that the ‘structure, placement or cumulative impact’ of the existing facilities makes 

them as or more intrusive than the proposed facility.” APT Pittsburgh Ltd. v. Penn Twp., 196 

F.3d 469, 480 n.8 (1999) (citation omitted). For example, in Ogden Fire Co. No. 1, the existing 

tower was larger in diameter, and taller, than the proposed tower, but the town still rejected the 

plan to erect the proposed tower. Ogden Fire Co. No. 1, 504 F.3d at 394. In Ogden, the plaintiff

demonstrated “that the structure, placement or cumulative impact of the existing. . . facility 

makes it more intrusive than the proposed [facility,]” and the court found that the second prong 

of the unreasonable discrimination test was satisfied. Id.

In the instant matter, it is undisputed that Sprint, a competitor of T-Mobile, has facilities

installed on the Building that is the site for T-Mobile’s Proposed Facilities. (See SOF at ¶¶ 118-

19.) Plaintiff’s expert, Uri Avin (“Avin”), testified that Plaintiff’s Proposed Facilities are 

similarly situated to Sprint’s facilities on the Building, and his testimony was not rebutted. (See 

Pl. Br. at 16; Avin Report at 9.) T-Mobile intends to install its facilities in a similar manner as 

Sprint, mounted to the façade of the building, as well as mounted to Sprint’s pre-existing 

equipment screen. (SOF at ¶¶ 122, 125.) Additionally, T-Mobile’s Proposed Facilities will not

be higher than Sprint’s pre-existing facilities. (SOF at ¶¶ 126-27.) Therefore, T-Mobile has 

satisfied both prongs of the unreasonable discrimination test under the TCA. 

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2. Whether Defendant’s decision prohibits Plaintiff from providing service in violation of 

the TCA

Federal district courts review “effective prohibition” claims under the TCA de novo. 

Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of Paramus, No. 09-4940 (JLL), 2010 WL 

4868218, at *8 (D.N.J. Nov. 22, 2010); see also, VoiceStream Minneapolis, Inc. v. St. Croix 

Cnty., 342 F.3d 818, 833 (7th Cir. 2003); National Tower, LLC v. Plainville Zoning Bd. of 

Appeals, 297 F.3d 14, 22 (1st Cir. 2002). Courts must be mindful that “Congress enacted the 

TCA in order to create a pro-competitive, de-regulatory national policy framework designed to 

rapidly accelerate private sector deployment of advanced telecommunications and information 

technologies and services. . .[, and] expressly preserves traditional [zoning] authority. . . , but 

places several substantive and procedural limits upon that authority. . . .” Sprint Spectrum L.P, 

2010 WL 4868218 at *8 (internal citations and quotation marks omitted).

“The regulation of the placement, construction, and modification of personal wireless 

service facilities by any State or local government or instrumentality thereof ... shall not prohibit 

or have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. § 

332(c)(7)(B)(i)(II). Indeed, the TCA “places several substantive and procedural limits upon that 

authority when it is exercised in relation to personal wireless service facilities[.]” APT 

Pittsburgh Ltd., 196 F.3d at 473. The purpose of the Section 332(c)(7) was to reduce “the 

impediments imposed by local governments upon the installation of facilities for wireless 

communications, such as antenna towers.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 

113, 115 (2005).

The Third Circuit has adopted the following two-part test for whether a denial of a

wireless service application constitutes an unlawful prohibition of service in violation of 47 

U.S.C. § 332(c)(7)(B)(i)(II): 1) whether there is a significant gap in wireless service and 2) 

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whether the proposed location is the least intrusive on the values the Board’s denial sought to 

serve. See, e.g., APT Pittsburgh, 196 F.3d at 480 (discussing the “least intrusive means” test); 

Sprint Spectrum L.P., 2010 WL 4868218, at *9 (explaining the two-part test and noting that the 

FCC now interprets “significant gap” as a gap in one provider’s coverage, not a total gap in 

coverage that remains unmitigated by any provider).

a. Significant Gap

As recently as 2003, the Third Circuit defined a “significant gap” in a wireless provider’s 

service as a gap in service that was not being serviced by any other providers. See Omnipoint

Commc’ns Enters. L.P., 331 F.3d at 398 (3d Cir. 2003).4 However, in November 2009, the FCC 

specifically rejected the “one provider” interpretation of the effective prohibition clause in favor 

of a standard that looks at the provider’s gap in its own service. See Ruling to Clarify Provisions 

of 332(C)(7)(b), 24 F.C.C.R. 13994 ¶ 56-61 (Nov. 18, 2009). The FCC stated “that the fact that 

another carrier or carriers provide service to an area is an inadequate defense under a claim that a 

prohibition exists, . . . ” and ruled that to establish an effective prohibition under the TCA, a 

provider need only show that it has a “significant gap” in its own wireless service coverage. Id.

at ¶¶ 56-66. The FCC is an agency charged with administering its own ambiguous statute, and as 

such, the FCC “remains the authoritative interpreter” of a statute, such as the TCA, despite

judicial precedent to the contrary. Nat’l Cable & Telecomm. Assn. v. Brand X Internet Servs., 

545 U.S. 967, 983 (2005); Borough of Paramus, 2010 WL 4868218, at *9. This “one provider” 

rule, as it had come to be known, has been rejected by other circuits, but not addressed again by 

the Third Circuit since the FCC ruling in 2009. See, e.g., T-Mobile Central, LLC v. Charter 

 4 The APT Pittsburgh decision provided the “significant gap” standard for the Third Circuit. 196 F.3d at 478-80. In 

APT Pittsburgh, the court held that there is only a “significant gap” in wireless service, for the purposes of an 

“effective prohibition” under § 332(c)(7)(B)(i)(II) of the TCA, where the gap in service is “not already served by 

another provider.” Id. at 480. The court reasoned that this interpretation supported the “zoning authority to local 

governing bodies.” Id. at 479.

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Twp., 691 F.3d 794, 806-08 (6th Cir. 2012) (holding that “[i]n light of the FCC’s endorsement of 

the standards used by the First and Ninth Circuits,” the Sixth Circuit adopts the position that a 

provider’s gap in its own service satisfies the TCA’s “significant gap” requirement); Second 

Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 631-33 (1st Cir. 2002); Metro PCS 

Inc. v. City and County of San Francisco, 400 F.3d at 732. 

The parties agree that there is a significant coverage gap in T-Mobile’s service in Leonia. 

(See Def. Opp’n at 4 (acknowledging T-Mobile’s “major coverage gap,” but arguing that the 

Proposed Facility would not alleviate it).) At the application hearing, the Borough’s consultant, 

Nelson, acknowledged the existence of a gap in T-Mobile’s coverage, but disagreed with the 

Plaintiff’s expert about the size of the gap. (SOF at ¶ 37.) The main point of contention between 

the parties is the extent to which wireless signal propagated from the Proposed Facilities will 

mitigate the coverage gap. (See Def. Opp’n. 7-8.) Nelson, testified that, in his opinion, the 

Proposed Facilities would not cover the entire gap, but only about 60% of the gap. (SOF at ¶¶ 

769-71.) Nelson opined that locating the Proposed Facilities at a site to the southeast of the 

Building would provide more complete coverage than the Building location, although he 

admitted that he did know of, and had not investigated, any viable sites within the southeast 

region he spoke of. (SOF at ¶¶ 72-74, 77.)

Defendant claims that:

the Board’s denial does not have the effect of prohibiting wireless service. 

Rather, T-Mobile does provide wireless service in the Borough of Leonia and the 

board’s conclusion that the proposed site does not substantially fill the coverage 

gap is well supported by the record in that T-Mobile did not meet its burden in 

providing the ‘positive criteria.’ In sum, the Board is not prohibiting wireless 

service, it is seeking to ensure its residents that the best wireless service 

alternatives are available for its citizens. 

(Def.’s Opp’n at 12-13.)

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The extent to which the service gap will be mitigated has not been part of the “significant 

gap” inquiry. See generally APT Pittsburgh at 478-80. Additionally, the Third Circuit declined 

to define a threshold “size” of gap, over which the service gap becomes “significant.” See

Cellular Telephone Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 

70 (3d Cir. 1999) (“We do not attempt here to define what constitutes a “significant” gap in local 

wireless services. Rather, we will leave it for the 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.”).

5

 In this instance, T-Mobile, by the Defendant’s acknowledgment has a 

“major coverage gap.”6 The record shows that the Proposed Facility would fill a majority of the 

gap (at least approximately 60%). Based on the evidence before this Court, and as neither party 

in this matter contests that there is a gap in T-Mobile’s service coverage within the Borough of 

Leonia that is significant, the Court finds that it is a “significant gap” for the purposes of this 

inquiry. (Def.’s Opp’n at 4.) 

b. Least Intrusive Means

After a wireless service provider has demonstrated that a “significant gap” in service 

exists, the provider must make some showing as to the intrusiveness of its proposed means of 

closing that gap, which is evaluated under the “least intrusive means” standard adopted by the 

Third Circuit. See, e.g., APT Pittsburgh, 196 F.3d at 480; Borough of Paramus, 2010 WL 

4868218, at *12. Under the “least intrusive means” test, the wireless provider must show that 

the proposed facility will fill its gap utilizing means that are the “least intrusive on the values that 

the denial sought to serve.” APT Pittsburgh, 196 F.3d at 480. The least intrusive means test 

 5 On the contrary, the Third Circuit assigned the job of determining what constitutes a “significant gap” to the 

district court, holding only that a “significant gap” is one in which “a remote user of those services is unable either 

to connect. . . or to maintain a connection capable of supporting a reasonably uninterrupted communication.” 

Cellular Telephone Co., 197 F.3d at 70. 6 Defendant notes that the gap is largely representative of in-building deficiencies. (See Def.’s Opp’n 7-8.) 

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does not require elimination of all theoretically possible alternatives, but requires that the 

wireless provider show that “a good faith effort has been made to identify and evaluate less 

intrusive alternatives, e.g., that the provider has considered less sensitive sites, alternative system 

designs, alternative tower designs, placement of antennae on existing structures, etc.” Id.; see 

also Borough of Paramus, 2010 WL 4868218, at *12.

According to the record before this Court, the Proposed Facility is the least intrusive 

means of closing the coverage gap in Leonia. Defendant’s planning expert, Cofone, testified that 

the Proposed Facilities would negatively impact the community by “eroding the zone plan and 

visibility.” (Pl. Ex. G, 11/18 Trans. at 65:1-6.) However, viable, less intrusive, alternate sites 

within the non-residential zoning district, that would be appropriate for the cell site, are not

identified and supported by the record. (See generally Pl. Exs. B-H.) T-Mobile’s expert, Avin,

testified that a facility located to the southeast of the Building would require the purchase and 

demolition of approximately six houses, and the construction of a new tower. (See SOF at ¶ 98.) 

The Borough’s Code, and Master Plan, both discourage the construction of new towers or facility 

placement in residential zones. (See SOF at ¶ 96.) Consequently, the construction of a new 

tower would not be consistent with the values that the Borough’s zoning code seeks to serve. 

(See SOF at ¶¶ 98-99.)

Additionally, Cofone stated she did not investigate any sites and could not testify about 

other location options. (See SOF at ¶ 92.) Similarly, Nelson mentioned a site to the southeast of 

the Building, but he also had not investigated any particular sites, and did not identify any

specific, viable sites to the southeast of the Building, or elsewhere. (SOF at ¶¶ 72-74, 77.) 

Further, the Chairman of the Board at the time of the application hearing, Bach, acknowledged 

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that there was a need for T-Mobile’s gap in coverage to be filled, and that no permitted sites 

satisfied the need. (See SOF at ¶ 38; Pl. Ex. H, Tr. Dec. 16, 2010 at 25:13-17.).) 

Defendant is also concerned about the aesthetic impact of the Proposed Facilities. 

Cofone testified that the Proposed Facilities would have equipment visible in the neighborhood.

(Pl. Ex. G, Tr. Nov. 18, 2010 41:3-42:1, 61:21-65:1-6.) Specifically, Cofone testified “the 

detriment is that you’re introducing more antennas that will be visible from the adjoining 

residential neighborhoods in an area where they are not permitted. (Tr. Nov. 18, 2010 61:23-

62:1.) Cofone stated “I don’t conclude that [the Proposed Facilities] will not have any 

substantial detriment to the visual impairment and the aesthetics of the zone”; however, the 

record does not support the position that it will cause visual detriment more so than any other 

alternative. (Tr. Nov. 18, 2010 41:3-42:1.)7

 

Notably, T-Mobile’s antennas would be collocated where Sprint’s structure is already 

present. In her testimony, Cofone addressed this point as follows: “[W]hile I understand your 

point, that, yes, the [B]uilding is attractive today and it does have collocated facilities on it, that 

in my opinion does not rise to the level of we can add more collocated antennas because they are 

there today.”8 (Tr. Nov. 18, 2010 62:11-15.) However, Plaintiff’s expert, Avin, opined that the 

installation of a new tower in Leonia would have a larger negative visual impact than that of the 

Proposed Facility. (See SOF at ¶103.) Avin concluded that the Proposed Facility at the Building 

is the “least visually intrusive,” in addition to being the least intrusive means for closing the gap. 

(See SOF ¶ 104.) T-Mobile has shown that it reasonably investigated the possibility that there 

 7 “Under New Jersey law, a zoning board may deny a variance to construct a monopole based on aesthetics, but its 

reasoning must be supported by substantial evidence. A few generalized expressions of concern with ‘aesthetics’

cannot serve as substantial evidence.” Sprint Spectrum L.P., 2010 WL 4868218 *15 (internal citations and quotation 

marks omitted). 

8 There were also other general statements made at the hearings regarding the aesthetic impact of what is already 

present at the Building from Sprint. (Tr. Nov. 18, 2010 26:9-22.) The record does provide, however, that overall 

Plaintiff’s equipment and Proposed Facilities will be less visible than those Sprint currently has present at the 

Building. (SOF ¶¶ 124-127; Tr. Apr. 22, 2010 76:1-23.)

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were less intrusive means of providing wireless service in its “significant gap” in service area, 

and did not find one.

T-Mobile has satisfied both prongs of an “effective prohibition” claim under the TCA.

3. Whether Defendant’s denial is supported by substantial evidence

Section 332(c)(7)(B)(iii) of the TCA states, “[a]ny decision by a State or local 

government or instrumentality thereof to deny a request to place, construct, or modify personal 

wireless service facilities shall be in writing and supported by substantial evidence contained in a 

written record.” 47 U.S.C. § 332(c)(7)(B)(iii). “Substantial evidence is not a large or 

considerable amount of evidence, but rather such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Omnipoint Corp. v. Zoning Hearing Bd. of Pine 

Grove Twp., 181 F.3d 403, 408 (3d Cir. 1999) (internal quotations omitted). To determine 

whether substantial evidence exists, “a court views the record in its entirety and takes account of 

evidence unfavorable to the agency’s decision.” Id. (citing American Textile Mfs. Inst., Inc. v. 

Donovan, 452 U.S. 490, 523 (1981)). 9

For Section 332(c)(7)(B)(iii) of the TCA, “the court’s task is to determine whether the 

decision, as guided by local law, is supported by substantial evidence.” Cellular Telephone Co. 

v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 at 72. “Under New Jersey law, 

local zoning officials must weigh the positive and negative factors associated with a requested 

zoning variance to determine whether, on balance, those factors weigh in favor of granting or 

 9 Under the New Jersey MLUL, a decision of a zoning board may be set aside only when it 

is “arbitrary, capricious or unreasonable,” but “[s]o long as the power exists to do the act 

complained of and there is substantial evidence to support it, the judicial branch of the 

government cannot interfere. . . . Thus, both § 332(c)(7)(B)(iii) and New Jersey law 

employ the substantial evidence standard.”

Sprint Spectrum L.P., 2010 WL 4868218 *13 (internal citations omitted).

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rejecting the request.” Id. It must be demonstrated that the requirements for a variance under 

N.J.S.A. 40:55D-70(d) have been met. Pursuant to N.J.S.A. 40:55D-70(d), 

No variance or other relief may be granted under the terms of this 

section, including a variance or other relief involving an inherently 

beneficial use, without a showing that such variance or other relief 

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. 

N.J.S.A. 40:55D-70(d) essentially requires 

an applicant to prove both positive and negative criteria to obtain a 

use variance. In general, the positive criteria require that an 

applicant establish “special reasons” for granting the variance . . . 

The negative criteria require proof that the variance “can be 

granted without substantial detriment to the public good” and that 

it “will not substantially impair the intent and purpose of the zone 

plan and zoning ordinance.” 

Smart SMR of New York, Inc., 152 N.J. at 323 (1998) (internal citations omitted).

10

For commercial uses, the positive criteria factor is satisfied “if the use is particularly 

suited for the proposed site.” Smart SMR of New York, Inc. v. Fair Lawn Bd. of Adjustment, 152 

N.J. 309, 332 (1998); see also Cell South of N.J. v. Zoning Board of Adjustment of W. Windson 

Twp., 172 N.J. 75, 82 (2002). “The applicant can prove particular suitability by demonstrating 

the need for a facility at the proposed location.” New York SMSA v. Bd. of Adjustment of

Weehawken, 370 N.J. Super. 319, 336 (N.J. Super. Ct. App. Div 2004). When making a decision 

regarding the particular suitability of wireless communication service facilities, courts examine 

 10 A four-part guiding test for municipal boards to use when balancing negative and positive criteria was set forth 

prior to the amendment of N.J.S.A. 40:55D–70(d). See Sica v. Bd. of Adjustment of Wall, 127 N.J. 152, 165 (N.J. 

1992); see also Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adj., 423 N.J. Super. 282, 289-90 

(App.Div.2011). “First, the board should identify the public interest at stake.” Sica, 127 N.J. at 165. “Second, the 

Board should identify the detrimental effect that will ensue from the grant of the variance.” Id. at 166. “Third, in 

some situations, the local board may reduce the detrimental effect by imposing reasonable conditions on the use[,]” 

and “[i]f so, the weight accorded the adverse effect should be reduced by the anticipated effect of those restrictions.” 

Id. (internal citations omitted). The last step is the requirement for the Board to weigh “whether, on balance, the 

grant of the variance would cause a substantial detriment to the public good.” Id.

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whether the “use promotes the general welfare because the site is particularly suitable for the 

use.” Id. at 335.

First, whether or not a facility promotes the general welfare can be satisfied by showing 

that an FCC license was issued to the provider. Id. at 355, n.1 (stating that “arguably, an 

applicant seeking to develop a communications facility that does not require the construction of a 

tower or monopole need show nothing besides its FCC license in order to satisfy the positive 

criteria”). T-Mobile has an FCC license. (See SOF ¶ 1.) 

Second, where plaintiffs must show that “the site is particularly suitable for the use,” TMobile has met that standard by showing that its coverage gap will be mitigated by placement of 

its Proposed Facilities on the Building. Plaintiff’s expert, Masters, testified that T-Mobile’s 

proposed use satisfies the “positive criteria” of New Jersey’s zoning laws because 1) the 

Building is “a particularly suitable site for a wireless telecommunications facility,” and locating 

facilities at the Building would meet Plaintiff’s “technical requirements” for boosting signal (Tr. 

Apr. 22, 2010 67:24-25, 68:1-15), and that 2) T-Mobile is licensed by the FCC, and as such, is 

deemed to serve the general welfare (Id. at 72:1-7). Further, the Building is particularly suitable 

for the Proposed Facilities for several reasons including, but not limited to, being an existing tall 

structure, its proximity to a major traffic connector, and minimizing the number of towers in 

Leonia. Also, although otherwise zoned, there is a current nonconforming use of the Building. 

See Cellular Tel. Wireless v. Board of Adjustment of Twp. of N. Bergen, 142 F. App’x 111, 116 

(3d Cir. 2005).

Defendant’s expert, Cofone, stated her opinion that the Board should hear evidence as to 

whether another potential site to the south of the Building exists that may be even more 

particularly well-suited, and that T-Mobile’s evaluation of the Building’s particular suitability 

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was based solely on the opinion of its own expert. (Tr. Nov. 18, 2010 25:5-24, 27:13-25, 28:1-

9.) However, Cofone also testified that she did not “really take exception with anything that 

[Masters] testified to in the positive criteria.” (Id. at 36:12-17.) Yet, the Resolution provided that 

the “Board finds from the testimony and evidence presented at the public hearings, that the 

applicant has not met its burden of proving ‘positive criteria’” that the proposed site was 

particularly suited for the proposed use. (Pl.’s Ex. L ¶ 27)(emphasis added). This Court finds 

that substantial evidence in the record does support that Plaintiff satisfies the “positive criteria.” 

When weighing the negative criteria, “the burden is on the applicant to prove that the 

variance can be granted ‘without substantial detriment to the public good.’” Cellular Telephone 

Co. v. Zoning Bd. of Adjustment of Harrington Park, 90 F. Supp. 2.d 557, 561-62 (2000) 

(quoting Smart, 152 N.J. at 323.) Additionally, “[w]hen the use is not an inherently beneficial 

one, the applicant must also demonstrate through enhanced quality of proof . . . that the variance 

sought is not inconsistent with the intent and purpose of master plan and zoning ordinance.” Id.

at 562 (internal citations and quotations omitted). While the New Jersey Supreme Court has 

ruled that the construction of new towers is not an inherently beneficial use, the court 

distinguished antennas and has yet to rule as to whether antennas affixed to an existing structure 

are inherently beneficial.11 See Smart, 152 N.J. at 331. Thus, this Court will also review 

whether the variance sought is consistent with the intent and purpose of the ordinance.

Plaintiff and Defendant’s experts disagree regarding whether there would be a negative 

impact on the surrounding neighborhood (SOF at ¶¶ 64-65). The Board determined that Plaintiff 

failed to satisfy the negative criteria. (Pl.’s Ex. L at ¶ 30.) However, Plaintiff has sufficiently 

 11 Although the New Jersey Supreme Court “declined to declare monopoles to be inherently beneficial uses, it did 

state that ‘[a] commercial use serves the general welfare and thereby satisfies the positive criteria if the use is 

particularly suited for the proposed site.’” Sprint Spectrum L.P., 2010 WL 4868218 *13 (quoting Smart, 152 N.J. at 

336). 

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established that the “variance can be granted without substantial detriment to the public good”

and that the variance sought is not inconsistent with the intent and purpose of the ordinance. See 

Smart, 152 N.J. at 332 (citing Sica, 127 N.J. at 156); see also Sprint Spectrum L.P., 2010 WL 

4868218. 

The evidence of record shows that: 1) both parties agreed that similar antennas and 

equipment for Sprint already exist on the roof at issue (SOF at ¶ 84); 2) the Board’s expert, 

Cofone, provided general statements regarding the negative aesthetic impact on the 

neighborhood surrounding the Building with the existing Sprint antennas and equipment (SOF at 

¶ 84); and 3) no expert presented by the Board disputed the conclusion that “locating wireless 

facilities on an existing structure is more desirable than constructing a new tower” (SOF at ¶ 76). 

Further, no specific better alternative location has been identified. These material facts are not in 

dispute. 

Additionally, the variance at issue here is “not inconsistent with the intent and purpose of 

the master plan and zoning ordinance.” Smart, 152 N.J. at 323. The Borough of Leonia Zoning 

Code’s purpose is to “[e]ncourage the collocation of wireless telecommunications antennas on as 

few structures as necessary, rather than locating such antennas each on separate structures.” 

Borough of Leonia, N.J., Code § 290-82(D) (2002). T-Mobile’s Proposed Facilities, if installed 

on the Building, would be placed with Sprint’s pre-existing antennas and equipment on the 

tallest building in the Borough, instead of on a less desirable, newly constructed tower. As such, 

the proposed use selected by T-Mobile is consistent with the intent and purpose of Leonia’s 

zoning ordinance, and does not substantially impair the neighborhood surrounding the proposed 

site.12

 12 See Sprint Spectrum, L.P. v. Zoning Board of Adjustment of the Town of Leonia, 360 N.J. Super. 373, 376 (2003)

(discussing the Sprint facilities and concluding that “the proposed telecommunications facilities will serve the 

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Substantial evidence in the record does not support the Board’s denial. T-Mobile has 

satisfied New Jersey’s test for granting a zoning variance by demonstrating that on balance the

positive and negative factors weigh in favor of its plan to build the Proposed Facilities.

As such, this Court may order the required approvals be granted, rather than remand this 

matter to the local authority. See Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Twp., 

181 F.3d at 410; Ogden Fire Co. No. 1, 504 F.3d at 396. Based of the above, this Court will 

enter an order requiring the Board to grant T-Mobile’s application and associated permits.

CONCLUSION

For the foregoing reasons, this Court GRANTS Plaintiff’s Motion. 

s/Susan D. Wigenton, U.S.D.J.

Orig: Clerk

cc: Judge Arleo

 Parties 

 general welfare, its benefits to the public will outweigh its potential detriments, and locating the equipment in a 

residential zone will not substantially impair the intent and purpose of the zone plan or ordinance.”)

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