Cellular Telephone Co. v. Zoning Board of Adjustment

Opinions of the United
1999 Decisions 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Precedential or Non-Precedential: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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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 co-
location 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-Ho-
Kus), 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 Ho-
Ho-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-Ho-
Kus, 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 Ho-
Ho-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 non-
existent. 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 Ho-
Ho-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

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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 non-
conforming 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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