MORRISTOWN, NJ - Superior Court Judge Stuart A. Minkowitz ruled in favor of the Chatham Township Zoning Board of Adjustment, stating it had the right to deny AT&T's application for a variance that would have allowed the cellular provider to install cell antennas in a residential neighborhood.
Judge Minkowitz's verbal preliminary ruling was revealed at the conclusion of the hearing held Tuesday in Morris County Superior Court. He will be issuing a written ruling on the complaint made by AT&T, which charged that the township zoning board of adjustment had been "arbitrary, capricious and unreasonable" in the denying the application.
The Chatham Township Zoning Board Adjustment had denied AT&T's application on Oct. 16, 2014, for variances in a residential neighborhood that would have allowed the cellular provider to install cell antennas on the NJ American Water Tower located on Buxton Road.
"He found that the federal law preempts state law and concluded that they did not meet the requirements under both the federal statute as it's now interpreted by the FCC rates, which are in effect, and a determination that under the federal act that you also had to address the number of users impacted, not simply the fact that a gap exists," Stephen H. Shaw, attorney for the township zoning board, said.
AT&T contended that the law indicated that it only had to determine that "a gap in service" existed, and did not provide statistics on the amount of customers affected by the gap.
Judy Fairweather, the attorney representing AT&T, also argued that the proposed plan did not constitute a "substantial change" to a base structure (the water tower). Shaw successfully argued that the computers and electrical equipment needed to power the cell antennas represented more than a 10 percent increase to the existing structure. Federal law now in place describes that as a "substantial change."
"There is a requirement that if you have a base station for co-location, the ground equipment can't be greater than 10 percent in aggregate of what already exists," Shaw said.
Judge Minkowitz found in favor of the defendants by interpreting federal law only. He did, however, voiced concerns in relation to how the board treated other testimony in the case.
"I'm very concerned with the board's finding of credibility with one realtor," Minkowitz said.
A Chatham resident, who is a realtor, stated at one hearing that property values would decrease by 20 percent if the cell antennas were allowed to be installed in the neighborhood. The judge also had "concern' over the board's view on the "noise factor," which was agreed by experts on both sides to be within state standards.
Minkowitz said that those concerns did not factor in his decision because federal law preempted state law. But, he indicated it could be a factor "When a new application is submitted."
AT&T could reapply for a variance under state law and not ask for a ruling under federal law, as it had in this case.
When asked if AT&T would consider reapplying for a variance, Fairweather said: "I have to talk to my client."
"AT&T's request has now been rejected by the local zoning board as well as the county judge," Buxton Road resident Haylee Messing, who attended the court hearing, said. "I hope this puts an end to it and AT&T does not continue to try to force something on this community, many of whom are AT&T customers. I have AT&T and have never had a dropped call in my house, located smack in the area they say needs coverage."