By Lea Kahn, Staff Writer
A Mercer County state Superior Court judge has dismissed a lawsuit filed against the Lawrence Township Zoning Board of Adjustment by two cell phone carriers whose joint use variance application was denied by the board in December 2007.
New Cingular Wireless PCS LLC and the Cellco Partnership/Verizon Wireless sued the zoning board in March 2008 after it refused to grant the use variance to allow construction of a 140-foot-tall cell tower on the Peterson’s Nursery and Farm Market property.
A use variance was needed because a cell tower is not a permitted use in the Environmental Protection-1 residential zone. The Peterson’s Nursery property, at the corner of Route 206 and Province Line Road, is in the EP-1 zone.
This is not the first time the zoning board has been sued over its denial to permit a cell tower on the Peterson’s Nursery property. The zoning board was sued in 1999 by the Cellco Partnership over its denial of a use variance for a tower. The Cellco Partnership sought to overturn the zoning board’s 1999 decision in Mercer County Superior Court, but lost.
The company appealed the case to the Appellate Division of state Superior Court, which upheld the lower court’s ruling in 2002.
In 2006, the Cellco Partnership teamed up with Cingular, Nextel Communications and Spring Spectrum to build a 140-foot-tall shared tower on the Peterson’s Nursery property.
The zoning board initially declined to hear the 2006 application because it was too similar to the 1999 application, but agreed to hear it after the applicants successfully sued to force the board to hear it. The zoning board then held seven public hearings on the application between March and December 2007.
Earlier this month, Mercer County Superior Court Judge Linda Feinberg issued a 74-page ruling that upheld the board’s decision in December 2007 to deny the use variance application.
New Cingular Wireless and the Cellco Partnership lawsuit claimed the zoning board’s actions in December 2007 were “arbitrary, unreasonable and/or capricious” because the carriers “satisfied and established the appropriate legal criteria required for the granting of the relief requested.”
Citing previous legal decisions, Judge Feinberg wrote in her April 1 ruling that “when a telecommunications facility requires construction of a tower or monopole, the applicant must prove that the site is particularly suited for that use.
“In the case at bar, the zoning board found the applicants failed to establish that the proposed monopole was particularly suited for the proposed site (Peterson’s Nursery),” Judge Feinberg wrote.
“While the zoning board acknowledged that the applicants all held Federal Communications Commission licenses, it properly rejected the applicants’ assertions that the issuance of FCC licenses presumptively satisfy the particular suitability requirement,” she wrote.
“Our courts have held that the public purpose presented by wireless communications facilities does not override concerns by a board relating to the location of such facilities,” Judge Feinberg wrote.
The judge also wrote the applicants’ radio frequency expert, Dominic Villeco, testified during the public hearings on the application that “the coverage gap can be filled by a monopole located on an alternate site, which indicates that the need is not particular to the proposed site.”
The “alternate site” is a township-owned parcel of land on Carter Road, next to the Bristol-Myers Squibb Co. The property is zoned Research and Development, which permits cell towers. The Carter Road site was mentioned several times during the 2007 public hearings.
“The record does not conclusively establish that Peterson’s Nursery is particularly suited for the monopole,” Judge Feinberg wrote. “Rather, its most attractive feature appears to be the fact that its owner consented to lease the property for the project… A property owner’s agreement to lease his land, even when no others are willing, does not automatically make it particularly suitable.”
Judge Feinberg also wrote “it is undisputed” the Peterson’s Nursery property already includes two nonconforming uses — the retail nursery that operates under a use variance approved in 1968 and two commercial billboards whose existence predates the zoning ordinance.
The zoning board “properly considered” the proposed monopole would be a third nonconforming commercial use on the site, but the applicants argued the two prior nonconforming uses were irrelevant, Judge Feinberg wrote.
“The court disagrees,” Judge Feinberg wrote. “Clearly, a monopole is inconsistent with the current nonconforming uses. The ordinance establishing the EP-1 (residential) district would certainly be (negatively) impacted by the construction of a wireless facility and a new 140-foot-tall monopole.”
Cingular and Verizon also claimed in the 2008 lawsuit that the zoning board’s denial violates the Telecommunications Act of 1996 because it “has the effect of prohibiting the provision of wireless telecommunications services in the township by Cingular and the other carriers.”
But Judge Feinberg wrote, “Recently, the courts have emphasized that the provisions of the TCA, barring local regulations from having the effect of prohibiting personal wireless services, seeks to protect the users of those wireless services, not the providers.
“Indeed, courts have held that more is required to prevail on a TCA claim than a simple denial of the right to construct a particular facility that a particular provider claims it needs,” Judge Feinberg wrote.
To establish a violation of the TCA, Judge Feinberg wrote, the provider must show its facility would fill an existing significant gap (in coverage) and the manner in which it proposes to fill the gap is the least intrusive means — such as considering less sensitive sites, alternative system or tower designs or placing antennae on existing structures.
“In this case, considering these two factors, the court finds…the Peterson property is not an appropriate site. Second, a monopole on the Peterson property is not the least intrusive means to remedy this issue,” the judge wrote.
“The record contains ample evidence establishing that a tower on Carter Road would be as an effective — if not more effective — alternative means of filling the coverage gap, a fact that the applicants’ own expert (Mr. Villeco) confirmed. It is zoned to allow such a use, rendering it less intrusive than the Peterson property,” Judge Feinberg wrote.
“In affirming the zoning board’s denial, the court is not prohibiting wireless service in violation of the TCA,” the judge wrote. “Rather, a less intrusive and equally effective alternate site is available in the form of the Carter Road property.”

