The New Jersey Supreme Court's treatment of the wireless communications industry pursuant to...

I. INTRODUCTION

"Should we force science down the throats of those who have no taste for it? Is it our duty to drag them kicking and screaming into the twenty-first century? I am afraid that it is."(1)

In many ways, we are in the midst of a communications revolution. The past

decade has seen communications technologies advance by leaps and bounds. Advanced satellite technology and the Internet are only two examples of the technologies that increasingly make our world smaller by facilitating seamless and inexpensive worldwide communications. Long gone is the era that recognized the Pony Express as a significant communications breakthrough. For example, the many facets of the emerging "information superhighway" now connect people beyond their wildest expectations, facilitating human relationships that would not have existed otherwise.

Paralleling the riders of the information superhighway are an ever growing number of wireless communication users, who increasingly rely on services such as cellular phones. Wireless communication service is a technological sub-category facilitating the exchange of information, coupling the massive information exchange conducted over the internet.

Anyone living in the United States as the millenium closes must recognize the widespread reliance on, and use of, wireless telephones. Wireless phones have made their way into virtually every conceivable daily routine. Consider the number of sidewalk strollers gabbing away, backseat business deals, stranded motorists saved, teenagers' social arrangements -- all conducted over wireless telephones. These common sights indicate growing passion for and social dependence on wireless telephone services and the associated benefits of immediate communication.

However, as wireless service providers work to meet the ever-growing user demand, they struggle to develop the facilities needed to meet that demand. Specifically, wireless service providers require signal transmission facilities, normally housed on constructed towers. As the total number of subscribers increases, so must the number of strategically located towers. Construction of these towers has generated heated disputes as wireless service providers, seeking optimal locations for these facilities, frequently encounter opposition from local residents. This Note examines various aspects of these disputes.

Congress attempted to address the rising tide of disputes between wireless service providers and local authorities by enacting the Mobile Services provision of the Telecommunications Act of 1996 ("the Act").(2) In part, the Act calls for the deregulation of the wireless industry in order to facilitate the rapid expansion of its services through increased competition.(3) Although the Act specifically provides guidance for the siting of wireless facilities, disputes between providers and local authorities continue.

In the wake of the Act, federal and state courts have attempted to resolve these disputes as they relate to siting issues and congressionally mandated deregulation.(4) In large part, courts recognize the spirit of deregulation imposed by the Act, while recognizing that the Act simultaneously provides for the preservation of local authority.

The New Jersey Supreme Court had the opportunity to consider several siting disputes in the summers of 1998 and 1999.(5) The court resolved these disputes according to the mandates of the Act and New Jersey Municipal Land Use Law.(6) In this context, the court produced a series of decisions that preserve the rights of local authorities to control land use matters, while simultaneously heeding the deregulatory call of the Act. This Note focuses on these growing disputes and how courts, specifically the New Jersey Supreme Court, are addressing them.

Part II of the Note describes the emergence of the wireless communication industry and the types of disputes it has generated. Part III highlights the congressional response to these disputes through the creation and passage of the Act and the way in which various federal courts have handled disputes subject to the Act. Part IV examines the impact of New Jersey Municipal Land Use Law as it relates to the siting of wireless communication facilities. Part V reviews the New Jersey Supreme Court's specific application of New Jersey Land Use Law and the Act to wireless siting disputes.

II. THE WIRELESS COMMUNICATIONS INDUSTRY

A. The Industry Explodes

The wireless communications industry has dramatically expanded over the past fifteen years, taking on an increasingly central role in American life. Wireless technology has undergone significant development since its inception in 1947.(7) Since 1982, when cellular phones first became publicly available, the wireless communications industry has rapidly gained over eighty million subscribers in the United States.(8) Moreover, with approximately 30,000 new wireless service users every day, a "fifty percent penetration rate of U.S. households" is expected in the near future.(9)

Additionally, the social utility of wireless communications has increased dramatically. Today, thousands of callers each year rely on wireless communications to contact emergency services such as 9-1-1.(10) In fact, wireless subscribers "make almost 35 million calls to 9-1-1 or other emergency numbers each year."(11) Such increasing reliance on wireless phones for life-saving communications presents a strong public policy argument for further expansion of the wireless industry.

The Chairman of the Federal Communications Commission, William Kennard, recently referred to the beginning of the twenty-first century as "[a]n era in which mobile communications will become a part of the life of every American."(12) As the wireless industry continues to remove barriers to personal communication in the business affairs and personal lives of a growing number of Americans, there is no indication our increased reliance on wireless technology will wane. In fact, projections suggest there will be 124 million wireless phone subscribers by the year 2005.(13) This number represents a significant portion of the American population; thus, the rapid expansion of this explosive industry, will continue to play a substantial role in American life.

B. Limitations of the Industry: Infrastructure

The wireless communications industry faces significant obstacles to expansion. For example, wireless providers require physical facilities to provide the convenience of their expanding service.(14) Specifically, communication towers containing transmitting and receiving antennas are essential to the transmission of communication signals.(15) Without adequate facilities, providers will be unable to provide customers with adequate services.(16) Thus, providers must have a sufficient number of appropriately placed towers to maintain customer satisfaction and protect providers' financial interests.(17)

C. Facility Siting Disputes

The need to supply towers is the crux of an increasing number of disputes between local authorities opposed to hosting these towers and service providers seeking optimal locations for them.(18) As 30,000 new customers subscribe to wireless services daily, "municipalities increasingly face petitions for permits to site wireless towers."(19) Municipalities historically have exercised significant control over issuing permits for land uses such as tower construction and placement.(20) As wireless providers inundate municipalities with permit applications to expand their services, municipalities often invoke their perceived police powers over siting issues and reject providers' placement applications for much needed towers. Thus, the conflict between the municipality and the provider ensues over determining the extent of the municipality's authority to regulate siting.

In this arena of dispute, wireless service providers have gone to great lengths to satisfy their tower and antenna siting needs. For example, providers have entered into agreements with schools and churches to house their antennas and towers.(21) Often, these locations are particularly suited to the transmission needs of providers.(22) In addition, these arrangements provide substantial income to schools and churches, which often operate under tight financial restraints.(23) Despite these mutually beneficial arrangements, siting conflicts of this ilk (and others) inevitably continue.

In fact, disputes over the placement of wireless service towers have become so pervasive that even a prime time television show, The Simpsons, dedicated a significant portion of a story line to the issue.(24) Reference to The Simpsons in this context demonstrates that even American pop culture recognizes the explosion and quasi-institutional status of wireless communications. Specifically, pop culture has recognized the competing interests of landowners and wireless service providers. It is interesting to note that the writers of The Simpsons took a clear position on the issue -- wireless providers are unregulated, monolithic entities who displace families' autonomous control of their homes and lives.(25) Many communities that have come to host wireless communication facilities share this sentiment.

Rarely do local authorities warmly welcome providers seeking tower placement in their towns.(26) They base their opposition on diverse and varying grounds, including: aesthetic considerations, health risks, and the possibility of facilitating an unabated influx of towers by merely admitting one.(27) Local residents and planners argue that the towers are unsightly and intrusive, thereby significantly "alter[ing] the character of [their] community" and possibly depreciating the value of their property.(28) Moreover, residents fear that towers "emit dangerous electromagnetic fields resulting in public health and safety concerns to the community.(29) Lastly, landowners and local officials believe that allowing placement of a single tower will open the floodgates for the unwanted commercialization of their communities.(30)

Residents' concerns, though arguably valid and worthy of consideration, impede the service providers' ability to satisfy their customers. The strategic placement of towers and antennas is crucial to the success of the wireless communications industry.(31) Specifically, the appropriate number and proper placement of towers and antennas is essential to maintaining continuous transmission coverage.(32) First, a location may simply be too far from the closest tower. Second, having an inadequate number of towers in relation to cellular demand in a densely populated area could result in users having to wait for an available signal.(33) In essence, the wireless communications industry relies on "its infrastructure to offer competitive services to its customers."(34)

Of course, disputes between homeowners and providers become more frequent as the industry expands.(35) Local authorities and residents contend that the towers are invading their towns, while wireless service providers claim NIMBYism(36) stands in the way of free enterprise and the important and valuable expansion of high technology industries.(37) Thus, as providers attempt to expand their businesses and increase revenues, local authorities struggle to keep control of their towns' landscapes. In fact, siting conflicts are sure to increase as the need to construct more towers increases along with the demand for wireless communication service.(38) It is against this backdrop that Congress entered the fray with the passage of the Telecommunications Act of 1996.

III. THE TELECOMMUNICATIONS ACT OF 1996

A. Presidential and Congressional Interests

On February 8, 1996 President Clinton signed into law the Telecommunications Act of 1996,(39) declaring it "landmark legislation," opening up competition and "promot[ing] universal service and open access to information networks."(40) In addressing members of Congress, President Clinton referred to the Act as another development in our nation' s "genius for communications."(41) In fact, the President considered the Act so monumental that he equated the Act's passage to such innovations in our nation's communication history as the Pony Express, "the miracle of human voice over the phone line," and Eisenhower's Interstate Highway Act.(42)

Congress demonstrated equal passion for the Act, giving it almost unanimous support in both the House and Senate.(43) Clearly, such uncommon bipartisan support indicated consensus approval for both the provisions and the spirit of the Act. Moreover, such widespread support in Congress suggests that Representatives and Senators felt that the Act would serve the best interests of their constituents by providing increased access to wireless communications along with reduced consumer costs.(44) The Act's passage satisfied a twenty year congressional desire to enact "broad based legislation to modernize ... laws governing the telecommunications industry.(45)

Representative Linder, addressing these interests, stated that he was "absolutely confident that the legislation before us today will produce competition that will be good for all Americans[, including] ... innovative technologies for every American household and ... benefits to the American consumer in the form of lower prices and enhanced services.(46) Other members of Congress viewed the legislation as quasi-revolutionary, rejecting archaic traditions of the communications industry.(47) Specifically, Representative Klug stated that:

   [the Act is] in many ways about fundamentally changing a mind-set, because
   for nearly 60 years in this country we have run communications based on a
   philosophy which said ... that the Government set prices, that the
   Government restricted access and restricted competition, and fundamentally
   it was the Government picking winners and defining losers.(48)

Thus, it appears that certain congressional leaders viewed this Act as liberating Americans from governmental burdens, enabling them to gain access to previously restricted technologies at reasonable costs.

B. Intent and Spirit of the Act

In passing the Act, Congress and President Clinton intended "to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technology and services to all Americans by opening all telecommunications markets to competition.... "(49) Ultimately, the Act is considered "expansive legislation designed primarily to increase competition in the telecommunications industry"(50) in the hopes of ensuring "that American consumers and businesses will have access to increasingly sophisticated communications technologies at competitive rates."(51) Advocates of competition believe it is the best mechanism to "provide consumers greater choices and better quality" in telephonic services, specifically wireless services.(52)

Of course, resolution of emerging disputes between wireless service providers and land use planners is essential to bringing these interests to fruition.(53) Accordingly, Congress "altered an area of regulation traditionally occupied by state and local governments."(54) To some extent, Congress functionally preempted the authority of state and local governments in siting wireless communication facilities.(55)

However, in its effort to resolve disputes between local planners and wireless providers, Congress appears unwittingly to achieve two contradictory results. First, "[t]he Act limits state and local zoning authorities' control over cellular tower siting."(56) These limitations take the form of mandatory prohibitions and affirmative obligations imposed on local authorities when deciding matters of wireless communication facility placements.(57) Those limitations of the Act provide:

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any state or local government....

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) [Local authorities] ... shall act on any [providers'] request ... for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time....

(iii) Any decision by [local authorities] ... shall be in writing and supported by substantial evidence contained in a written record.(58)

Read plainly, these limitations strongly suggest that Congress and the President wished to prevent local interference with the federal mission of expanding the wireless telecommunications industry

Although a liberal reading of the provision indicates to some extent an affirmative duty on the part of local authorities to welcome wireless service providers,(59) the section providing these limitations is entitled "Preservation of Local Zoning Authority."(60) The express language of the section states that "[e]xcept as provided in this paragraph [i.e., the itemized limitations], nothing in this Act shall limit or affect the authority of a State or local government ... over decisions regarding placement, construction, and modification of personal wireless service facilities."(61) Thus, in fact, the section was intended to preserve the authority of state and local governments over zoning and land use matters, limited only by the aforementioned exceptions.(62)

Thus, the Telecommunications Act generates a dilemma for those relying on its dictates.(63) The Act "limits local and state zoning authority over tower siring," yet "preserves the traditional authority of a state or local government `over decisions regarding the placement, construction, and modification of personal wireless service facilities.'"(64) An Act that creates an apparent federal mandate to expand wireless services, while at the same time allowing state and local authorities to limit this expansion can mean only one thing - litigation.(65) Consequently, the federal courts began to address these very concerns soon after the Act's passage.

C. The Federal Courts and the Act

Although courts have, in large part, dealt with siting disputes on a case-by-case basis, they generally defer to the deregulatory spirit of the Act and Congressional intent to encourage the rapid deployment of new telecommunications technologies.(66) Courts rule in favor of zoning boards over siting disputes when appropriate, but nonetheless recognize the federal mission of expanding the wireless industry. The courts' commitment to broader legislative objectives has often led to the proscription of local interference impeding wireless expansion.

For example, one district court found that "[a]lthough the TCA [i.e., the Telecommunications Act] `does not completely preempt the authority of state and local governments to make decisions regarding the placement of wireless communications service facilities within their borders,' it does impose significant limitations on this authority."(67) In addition, the court recognized that "the TCA shifts the burden of proof to the government agency that denied the applicant's siting request `rather than burdening the applicant with producing substantial evidence supporting its approval.'"(68)

Another district court also deferred to a telecommunications provider's interests.(69) The court asserted that even "facially neutral" actions on the part of local planning boards may be sufficient to invoke a violation of the Telecommunications Act.(70)

Similarly, the Court of Appeals for the Second Circuit recognized that the Act "imposes limits on the authority of state and local governments to restrict personal wireless services."(71) Within the spirit of that recognition, the court demanded that the plain language of the Act be read in its entirety to serve the purposes of the Act.(72) Simply put, it can be argued that at least the Second Circuit requires that courts interpret the Act in favorable terms so that the broad purposes of deregulation and expansion may be served when possible.

IV. NEW JERSEY, THE WIRELESS INDUSTRY AND THE ACT

The New Jersey Supreme Court has addressed wireless tower siting disputes several times since the passage of the Telecommunications Act.(73) In order to understand the process which the court used to review these disputes, it is important to establish the framework of New Jersey Land Use Law as it relates to these concerns.

A. New Jersey Municipal Land Use Law

The New Jersey Municipal Land Use Law empowers local governing bodies to adopt zoning ordinances which define the nature and extent of land uses in respective municipalities.(74) Essentially, the zoning ordinance defines which land uses will be permitted in specific districts within the municipalities.(75) For example, the zoning ordinance designates some districts for residential uses, while reserving other districts for industrial uses. Consequently, certain land uses are prohibited in certain districts within specific municipalities.

The New Jersey Municipal Land Use Law empowers boards of adjustment to permit departure from these restrictions through the granting of variances.(76) Specifically, a board may issue a use variance to permit a land use normally restricted by ordinance in the district.(77) A wireless provider seeking to construct a tower or facility in a zoning area where such use is restricted is then required to apply for a use variance to construct the facility as an exception to the zone plan or ordinance.

Use variances are granted pursuant to the balancing of certain positive and negative criteria as established in the New Jersey Municipal Land Use Law.(78) Generally, in order to satisfy the positive criteria, special reasons must be established indicating that the use will benefit the general welfare.(79) Negative criteria are established by demonstrating that the variance can be granted without a substantial detriment to the public good and that the variance will not impair the intent and purpose of the original ordinance.(80)

The New Jersey Supreme Court used these criteria to determine whether certain wireless providers were entitled to use variances to construct facilities where they were not permitted by local ordinance.(81) The court carefully crafted a means of adhering to New Jersey Land Use Law while heeding the call of the Telecommunications Act when considering wireless providers' applications.(82) However, it is important to note that in order for an applicant to receive a use variance, the applicant must satisfy the requisite balancing test. The court utilized this balancing test in examining use variance applications from wireless providers in the summers of 1998 and 1999.(83)

B. The Balancing Test

New Jersey Municipal Land Use Law provides in pertinent part:

   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 [local] zone plan and zoning
   ordinance.(84)

To satisfy the demands of the positive criteria, an applicant must prove that "special reasons" exist for the variance.(85) Essentially, a variance applicant must prove "that the use promotes the general welfare because the proposed site is particularly suitable for the proposed use."(86) The following discussion highlights the application of the positive criteria by the NEW Jersey courts.

The Appellate Division, in New York, SMSA v. Board of Adjustment,(87) recently examined whether special reasons existed regarding the application of a proposed telecommunications tower. Here, the variance applicant examined twenty-seven alternate sites that if found were inadequate to satisfy the company's transmission needs.(88) The court found that special reasons did not exist, however, because the applicant failed to prove that no other sites were available.(89) Essentially, the court sought proof that the applicant had examined every potential site in the municipality beyond the twenty-seven already investigated. Subsequently, the court denied the application on these grounds, finding that there was insufficient showing of special reasons because it was possible that alternate sites existed.(90)

Another New jersey court, in Pagano v. Zoning Board of Adjustment,(91) introduced an equally demanding requirement for proving special reasons. There, applicants sought a variance to construct a pistol range and tackle shop.(92) The court found that while this proposed use possibly promoted the general welfare, it required the applicant to demonstrate "that the general welfare would similarly be advanced by locating the pistol range at other locations, or to provide proof that no other suitable sites exists...."(93)

These cases suggest that the positive criteria will not be satisfied unless the an applicant proves that there are no other possible sites for its proposed use. This standard of proof seems almost unreasonable in light of the court' demands. Nonetheless, even where an applicant meets the strict proof requirements of the positive criteria, it must then also satisfy the negative criteria.(94)

To satisfy the negative criteria, an applicant must prove that the variance "can be granted without substantial detriment to the public good' and that it `will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."(95) This proof must be demonstrated through "an enhanced quality of proof and clear and specific findings" of the local zoning authority.(96) In fact, the Medici court described the "enhanced proof" requirement as a "formidable burden" for an applicant to overcome.(97)

This formidable burden requires that a use variance applicant demonstrate why their proposed use should be permitted in the specific location despite the express restrictions imposed by the local zoning ordinance.(98) Essentially, an applicant must demonstrate that the zoning ordinance improperly excludes their proposed use from the proposed location due to oversight or otherwise on the part of the original drafters of the local ordinance. For example, an applicant may overcome this formidable burden by proving that a use originally omitted from the zoning ordinance is no longer incompatible with the intent and purpose of the original zoning ordinance because "the character of a community has changed substantially since the adoption of the ... zoning ordinance."(99) This proof becomes increasingly difficult if prior applications have been made for the same use but the zoning board denied the application and chose not to amend the zoning ordinance to include the proposed use.(100)

The New Jersey Supreme Court developed this weighty burden to make it clear that "zoning decisions [should be made] by ordinance rather than by variance."(101) The formidable burden of the negative criteria, coupled with the often demanding special reason requirement of the positive criteria, makes it difficult for an applicant to circumvent the zoning ordinance by acquiring a use variance. The above criteria apply to standard use variance applications. These criteria, however, are considerably less stringent where the proposed use is deemed inherently beneficial.(102)

C. Inherently Beneficial Balancing

The New Jersey Supreme Court distinguishes inherently beneficial uses and conducts a more refined, deferential use variance balancing test when considering this sort of application.(103) Although all proposed use variances are subject to a balancing of the positive and negative criteria, the burden of proof for inherently beneficial land uses is significantly lessened.(104) In fact, where the proposed use is inherently beneficial, the positive criteria, and therefore the special reasons, are presumptively satisfied.(105)

As with other uses, once the positive criteria are demonstrated, an inherently beneficial applicant must also satisfy the negative criteria through a showing that the use "will not substantially impair the intent and purpose of the zone plan...."(106) However, an inherently beneficial use applicant is not subject to an "enhanced quality of proof" standard(107) and does not face the same "formidable burden."(108) This reduced burden places inherently beneficial use applicants in a particularly advantageous position when seeking a use variance.(109)

Application of the negative criteria to inherently beneficial uses differs in a second regard. The New Jersey Supreme Court instructed reviewing boards to conduct a deferential four-part examination to determine whether the negative criteria are satisfied.(110) First, a reviewing board must identify the public interest to be served by the proposed use.(111) Second, the reviewing board should identify the detrimental effect that would result from granting the variance.(112) Third, where appropriate, the reviewing board may impose reasonable restrictions on the use to reduce the perceived detriment.(113) Finally, inherently beneficial land uses are then subject to the simple balancing of benefits and detriments as developed by the first three steps to "determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good."(114) This procedural balancing "properly ... mak[es] it more difficult for municipalities to exclude inherently beneficial uses...."(115)

V. STRIKING A BALANCE IN THE BALANCING TEST FOR TELECOMMUNICATION TOWERS

Before the New Jersey Supreme Court addressed wireless facility siting disputes, numerous Law Division and Appellate Division decisions found wireless facilities to be "inherently beneficial" for use variance considerations.(116) Therefore, wireless providers were afforded the associated deferential treatment by zoning boards and courts when applying for use variances. In 1997, however, the New Jersey Legislature expressed disapproval with this emerging trend, fearing rampant expansion of wireless towers throughout the state.(117) In pertinent part, the legislature amended the Municipal Land Use Law(118) (discussed above), codifying the principle that even with an inherently beneficial use, the negative criteria must be satisfied.(119) Although courts continued to treat inherently beneficial uses with deference under the balancing test, the actions of the legislature reduced that deference.(120) Therefore, when the New Jersey Supreme Court faced wireless facility siting disputes in the summers of 1998 and 1999, it was forced to consider the restrictive intentions of the state legislature.(121)

This scenario forced the New Jersey Supreme Court to face an inherent dilemma -- the Federal Telecommunications Act called for the rapid expansion of wireless services, while the New Jersey State Legislature sought to stifle the trend of expedited use variances granted to wireless providers. The court ultimately struck a balance between both legislative interests.

Smart SMR(122) was the court's first opportunity to address this dilemma. Smart received a license from the FCC authorizing the installation of "an enhanced specialized mobile radio" (ESMR) system in the New York metropolitan area, which included New Jersey.(123) The ESMR system "provides services similar to those of cellular telephone systems.(124) After the zoning board denied Smart public utility status, Smart applied for a use variance to construct a necessary transmission tower and antenna.(125) After ten hearings and extensive expert testimony, the Board rejected Smart's application, finding that Smart failed to satisfy the positive and negative criteria reserved for use variance applications.(126)

The Law Division affirmed the findings of the Board, but "the Appellate Division reversed, finding that the Board's decision was arbitrary, capricious and unreasonable."(127) Unlike the decisions of the Board and the Law Division, the Appellate Division found that Smart's proposed facility was inherently beneficial and satisfied the positive and negative criteria.(128) On appeal, the New Jersey Supreme Court addressed whether Smart was "entitled to a use variance ... to erect a 140-foot telecommunications ... [tower]."(129)

The court considered the various aspects of the positive/negative criteria balancing tests for inherently beneficial uses and non-inherently beneficial uses.(130) The court modified the Appellate Division's conclusions, finding that Smart's proposed facility was not inherently beneficial.(131) This determination contradicted the long line of New Jersey cases finding wireless communication facilities inherently beneficial.(132) In light of its refusal to recognize that Smart's proposed tower was inherently beneficial, the court applied a modified use variance balancing test.(133)

Recognizing the explicit and implicit requirements of the Telecommunications Act, the court summarily found that the positive criteria were satisfied.(134) With limited discussion, the court reasoned that commercial uses serve the general welfare, and concluded that Smart's facility was particularly suited to be located in the proposed industrial zone.(135) For these reasons, the positive criteria were satisfied.(136)

Interestingly, although the court concluded that Smart's facility was not inherently beneficial, it did not determine whether the positive criteria's "special reasons" requirement was satisfied. Specifically, the court did not examine whether Smart demonstrated that all other viable locations had been considered, as other courts have done when examining non-inherently beneficial uses.(137)

The court implemented a surprisingly deferential examination of the negative criteria as well.(138) Instead of requiring the satisfaction of the negative criteria through the "enhanced quality of proof" requirement as in other non-inherently beneficial use variances, the court utilized a modified inherently beneficial balancing test.(139) The court did not impose the "formidable burden" of the enhanced proof requirement; instead, it merely weighed whether, on balance, "the grant of the variance would cause a substantial detriment to the public good."(140) In fact, earlier decisions applying the inherently beneficial test guided the court's application.(141) Utilizing the negative criteria balancing test normally reserved for inherently beneficial uses, the court found Smart's proposed use variance could be granted without substantial detriment to the public good, thereby satisfying the negative criteria.(142)

The court's particular application of the balancing test is rather surprising, considering the court went to great lengths to distinguish Smart's proposed use from inherently beneficial uses.(143) The court classified Smart's wireless facility as non-inherently beneficial and had the opportunity to functionally address it as such under the balancing test. Instead, the court deemed the wireless facility non-inherently beneficial but functionally applied the inherently beneficial test, thereby affording wireless providers a less stringent standard of proof.

In Smart SMR, the court creatively resolved an exceedingly complex dilemma. Recognizing that the New Jersey legislature disapproved of the courts' trend in finding uses inherently beneficial, particularly wireless facilities, the court refused to find the wireless facility inherently beneficial. At the same time, the court recognized the congressional mandate of the Telecommunications Act and afforded Smart, as a wireless provider, substantial deference in its use variance application vis-a-vis this unprecedented application of the balancing test. In effect, the court created a modified balancing test catering to the special circumstances of the wireless services industry.

One year later the court revisited many of these issues in New Brunswick Cellular Telephone Co. v. Borough of South Plainfield Board of Adjustment.(144) Here, the court clarified and expanded many of the findings in Smart SMR, and further entrenched the specialized treatment given to wireless providers in New Jersey. Once again, the court reviewed whether the actions of a Board of Adjustment "arbitrarily, capriciously and unreasonably denied the request of appellant ... for use and bulk variances to construct a monopole for cellular communications."(145) Specifically, the court's concern was whether the Board had incorrectly balanced the positive and negative criteria.(146)

The court ultimately reversed the Appellate Division's holding and reinstated that of the Law Division, concluding that New Brunswick Cellular satisfied both the positive and negative criteria.(147) In balancing the positive and negative criteria, the court expanded the deference given to wireless providers under the Smart SMR decision. Once again, the court gave short treatment to the positive criteria, finding it had been satisfied through the FCC licensing procedure.(148) The court, relying on the Smart SMR decision, substantially expedited future examinations of the positive criteria by expressly stating that "an FCC license generally establishes that the use promotes the general welfare."(149) All wireless communication providers are regulated by the FCC and must acquire licenses to provide their services.(150) Therefore, whenever wireless applicants seek a use variance they presumably will already be licensed by the FCC, thereby satisfying the positive criteria. Thus, the "special reasons" criteria are substantially reduced for wireless providers, assuming that they possess the requisite FCC license. Thus, the New Brunswick Cellular ruling bolsters the advantageous position of wireless providers already established in Smart SMR.

The court maintained, however, that in addition to promoting the general welfare, the positive criteria test requires that wireless providers demonstrate that a proposed use is particularly suited for the site, and that the negative criteria are satisfied.(151) Acknowledging the expert testimony provided by New Brunswick Cellular, the court found its proposed site particularly suited for the wireless facility.(152) Expert testimony demonstrated that the site was important to New Brunswick Cellular because it would compensate for inadequate service in the area and ensure that signal transmission would be adequately "handed off."(153)

In AWACS, Inc. v. Clementon Zoning Board of Adjustment, (154) the court again made clear that expert testimony is an essential requirement in a balancing test involving wireless facilities. As in New Brunswick Cellular, the court found that AWACS satisfied the positive criteria through its possession of an FCC license.(155) However, the AWACS court ultimately remanded the matter to the Board, finding there was insufficient expert testimony to proceed.(156) Specifically, the court sought expert testimony regarding "the effect of the grant of the variance on the master plan or zoning ordinance."(157) This decision, handed down the same day as New Brunswick Cellular, emphasized that the wireless provider use variance balancing test, although deferential to providers, is distinguishable from other inherently beneficial uses. Wireless providers are still required to present expert testimony to demonstrate that the proposed use will not undermine zoning ordinances, thereby satisfying part of the negative criteria.(158)

The court's decision in New Brunswick Cellular is consistent with the AWACS holding, requiring New Brunswick Cellular to demonstrate that their tower would not substantially impair the purpose and intent of the local zone plan or the public welfare, thus satisfying the negative criteria.(159) However, even though the court required expert testimony regarding the negative criteria, it nevertheless applied the inherently beneficial use standard to ultimately test if the negative criteria were satisfied.(160) In fact, the court stated that "[w]ith telecommunications facilities, `[it] will weigh [the positive and negative criteria] as [it] would with an inherently beneficial use ... [in order to determine] whether, on balance, the grant of the variance would cause a substantial detriment to the public good.'"(161) Finding that the proposed facility would not produce any unreasonable intrusions or impose any burdens on city services, the court concluded the use produced no public detriment.(162) Moreover, citing the increasing demand for wireless communications, the court contradicted the Board and found that the benefits of granting the variance were more than "minimal."(163) Thus, when the court balanced these considerations, the benefit of New Brunswick Cellular's monopole outweighed the non-existent detriment, thereby satisfying the negative criteria.(164) Consequently, the court found that both the positive and negative criteria were satisfied, and reinstated the judgement of the Law Division.(165)

The court's decision to reinstate the judgment of the Law Division is particularly interesting because the Law Division proceeded on the assumption that New Brunswick Cellular's proposed use was inherently beneficial.(166) The court in New Brunswick Cellular reiterated the sentiment of Smart SMR, confirming that wireless facilities are not inherently beneficial, but nonetheless utilized a quasi-inherently beneficial balancing test to reinstate a judgement that relied on wireless services being inherently beneficial.(167) Functionally, the court came very close to treating wireless facilities as inherently beneficial uses for use variance considerations, although the legislature expressed a strong interest in avoiding that scenario. The court nonetheless avoided implementing the heightened deference of earlier inherently beneficial decisions, thereby maintaining that wireless facilities are not inherently beneficial.

The Smart SMR and New Brunswick Cellular decisions strike a delicate compromise between state/local land use concerns and the federal deregulatory mandates of the Telecommunications Act.(168) The New Jersey Supreme Court recognized that state and local authority over land use matters was to some extent preempted by the Telecommunications Act.(169) To this extent, the court managed to preserve local authority while not undermining the spirit and requirements promulgated by the federal legislation. The court's creation of a hybridized balancing of the positive and negative criteria preserves the interest of local authorities in reviewing zoning matters, but affords the telecommunications industry the deference required under federal law.

It is unclear how the court will expand or limit these principles in the future. However, should the court continue to show deference based on wireless communications' growing societal importance, that deference is only likely to increase in coming years. Already, the court has recognized that "[i]n today's world, prompt and reliable information is essential to the public welfare."(170) Clearly, wireless services will continue to expand and diversify, becoming more essential to the daily workings of New Jersey and the entire nation. The court suggested that, although it was not yet ready to declare wireless providers inherently beneficial, it "may recognize, as the lower courts unanimously have recognized, that ... mobile communications facilit[ies are] inherently beneficial."(171) Considering the rapid expansion of the wireless industry and the sympathetic treatment it receives from the courts of New Jersey, it appears inevitable that wireless facilities will ultimately be deemed inherently beneficial.

VI. CONCLUSION

The expansion of the wireless industry has brought with it novel issues for land use planners. The increased consumer preference for wireless services has placed significant pressure on local land use authorities and courts to facilitate this expansion as the demand for wireless facilities correspondingly increases. Although Congress thoughtfully attempted to address this growing area of dispute by passing the Telecommunications Act of 1996, conflicts inevitably continue.

In New Jersey, the courts have supplemented the federal legislation with the application of state land use law in attempts to produce a compromise between wireless service providers and local authorities. The New Jersey Supreme Court's novel application of state land use law strikes a harmonious balance between the interests of local land planners and the congressional interests in deregulation contained in the Telecommunications Act. As the new millenium approaches, recent case law recognizes the importance of society's evolving technological preferences and practices. Because technological advancements tend to outpace the response of legislative institutions, it is necessary for the courts to carefully balance both commercial and societal interests when confronted with novel questions of technological development. The New Jersey Supreme Court responsibly recognized this unique obligation in a world that is increasingly reliant upon the technological advancements of the day.

(1.) Speech by Chemist George Porter (Sept. 1986), in CHRONOLOGICAL DICTIONARY OF QUOTATIONS 347 (Edmund Wright ed., 1993).

(2.) 47 U.S.C. [sections] 332 (Supp. III 1997).

(3.) See Sprint Spectrum, L.P.v. Town of Easton, 982 F. Supp. 47, 49-50 (D. Mass. 1997).

(4.) See, e.g., Virginia Metronet, Inc. v. Board of Supervisors, 984 F. Supp. 966 (E.D. Va. 1998); Smart SMR, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 704 A.2d 1271 (N.J. 1998); Sprint Spectrum, L.P.v. Town of West Seneca, 659 N.Y.S.2d 687 (Sup. Ct. 1997).

(5.) See Smart SMR, 704 A.2d 1271; New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 733 A.2d 444 (N.J. 1999); AWACS, Inc. v. Clementon Zoning Bd. of Adjustment, 733 A.2d 453 (N.J. 1999).

(6.) See generally N.J. STAT. ANN. [sections] 40:55D (West 1991 & Supp. 1999).

(7.) See Nancy M. Palermo, Progress Before Pleasure: Balancing the Competing Interests of Telecommunications Companies and Landowners in Cell Site Construction, 16 TEMP. ENVTL. L. & TECH. J. 245, 245-46 (1998).

(8.) See Cellular Telecommunications Industry Association, The World of Wireless Communications: Frequently Asked Questions & Fast Facts (visited Nov. 11, 1999) <http://www.wow-com.com/consumer/faqs/faq_general.cfm> [hereinafter CTIA FAQ] (estimating "that by 1999 there will be 200 million wireless phone users worldwide").

(9.) See David W. Hughes, When NIMBYs Attack: The Heights to Which Communities Will Climb to Prevent the Siting of Wireless Towers, 23 J. CORP. L. 469, 472 (1998). "Telephone penetration is a phrase used by the FCC to measure telephone availability or the percentage of households with telephone service." Id. at 472 n.9.

(10.) See Cellular Telecommunications Industry Association, The Worm of Wireless Communications: Statistics & Surveys (visited Nov. 11, 1999) http://www.wow-com.com/statsurv/e911/(indicating that daily 9-1-1 and distress calls jumped from 530 in 1985 to over 98,000 in 1998); see also Brian J. Sullivan, The Effect of the Telecommunications Act on Zoning and Planning, COMM. LAW., Summer 1998, at 3 (recognizing the increased demand for cellular communications services); Speech of William E. Kennard, Chairman of the FCC, Crossing into the Wireless Century (Feb. 9, 1996), (visited Oct. 18, 1999), <http://www.fcc.gov/Speeches/Kennard/spwek906.html>. Chairman Kennard related the following story of a young boy's life-saving use of a cellular phone:

   Last year, 8-year old David Duplantis was fishing here in Louisiana with
   his 12-year old cousin and his uncle when they noticed a leaking fuel pump.
   While they were trying to fix the pump, the boat suddenly veered out of
   control, crashing into the bank of a canal. They hit the bank with such
   force that all the electrical equipment was destroyed, including the radio.
   David's cousin was thrown to the front of the boat and was knocked
   unconscious, and David's uncle was seriously injured. Falling in and out of
   consciousness, his uncle told David to grab his wireless phone and call
   911. Rescue teams responded immediately, but the boat was so hidden that
   they were initially unable to see the wreck. Young David stayed on the
   phone for 45 minutes and eventually helped the rescuers locate the site.
   His cousin ended up OK. And his uncle survived, after 2 weeks on
   life-support and a month in intensive care.

Id.

(11.) CTIA FAQ, supra note 8, at <http://www.wow-com.com/consumer/ faqs/faq_911.cfm#one>.

(12.) Kennard, supra note 10.

(13.) See Palermo, supra note 7, at 245-46 (citing Haya El Nassar, Crossed Signals: Cities Object to Call Towers, USA TODAY, Nov. 14, 1996, at 3A).

(14.) See id. at 246.

(15.) See id.; see also Hughes, supra note 9, at 478-79 (explaining the basic mechanics of wireless services).

(16.) See Dean J. Donatelli, Note, Locating Cellular Telephone Facilities: How Should Communities Answer When Cellular Telephone Companies Call?, 27 RUTGERS L.J. 447, 452-53 (1996) (discussing operational logistics of wireless systems).

(17.) See Hughes, supra note 9, at 483-84 (explaining that systems rely on precise placement and design of individual towers).

(18.) See Palermo, supra note 7, at 246; see also Kennard, supra note 10 (stating that "one of the of the most contentious issues I have faced as Chairman of the FCC is the issue of tower siting").

(19.) Hughes, supra note 9, at 486 (citation omitted).

(20.) See id. at 486-87.

(21.) See Bev McCarron & Jeffrey C. Mays, Cellular Antennas Offer Schools Easy Money, STAR LEDGER (Newark), June 21, 1999, at Al.

(22.) See id. (suggesting that schools are often ideal spots for antennas because they are located in areas in which cellular phones are in frequent use).

(23.) See id. For instance, Don Bosco Technical High School in Paterson, New Jersey receives approximately $30,000 in rent per year for housing a Bell Atlantic antenna. See id.

(24.) See The Simpsons: Make Room for Lisa (Fox television broadcast, Fall 1998). The writers of the show suggested that the wireless provider company, Omnitouch, was an unregulated, quasi-governmental agency, with the ability to commandeer the lives of families. See id. During the show, Homer, the Simpson family's dedicated patriarch, damaged the Bill of Rights while visiting a museum owned by Omnitouch. See id. In order to repay Omnitouch for the damage done to the Bill of Rights, Homer agreed to house a signal transmitter antenna on his roof and convert his daughter Lisa's bedroom into its control center. See id.

(25.) See id.

(26.) See Hughes, supra note 9, at 471.

(27.) See Palermo, supra note 7, at 248.

(28.) Id.

(29.) Id. However, courts have found these concerns to be completely without merit and go so far as to call "health and safety issues ... nothing but rank speculation." NYNEX Mobile v. Hazlet Township, 648 A.2d 724, 732 (N.J. Super. Ct. App. Div. 1994).

(30.) See Palermo, supra note 7, at 248.

(31.) See Gregory Kratofil, The Telecommunication Act of 1996 and Section 704: A "Boom" or "Bust" for the Mobile Telephone Industry, 16 ST. LOUIS U. PUB. L. REV. 499, 502 (1997).

(32.) See Donatelli, supra note 16, at 452-53 (discussing the specifics of how wireless systems operate vis-a-vis antenna towers).

(33.) See id.

(34.) Hughes, supra note 9, at 470.

(35.) See Palermo, supra note 7, at 247-49.

(36.) See Hughes, supra note 9, at 482. NIMBY is an acronym for "not in my backyard." Id.

(37.) See id. at 482-83.

(38.) See Palermo, supra note 7, at 246.

(39.) See Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified in scattered sections of 47 U.S.C.).

(40.) President's Statement on Signing the Telecommunications Act of 1996, 32 WEEKLY COMP. PRES. DOC. 218, 218 (Feb. 12, 1996) [hereinafter Statement].

(41.) President's Remarks on Signing the Telecommunications Act of 1996, 32 WEEKLY COMP. PRES. DOC. 215, 216 (Feb. 8, 1996) [hereinafter Remarks].

(42.) Id. at 216-17.

(43.) See President's Remarks to the National Infrastructure Advisory Council, 32 WEEKLY COMe. PRES. DOC. 277, 278 (Feb. 13, 1996) (noting that the Act "passed almost unanimously [through the House and Senate]"). The Act passed in the House by a final tally of 414 to 16. See H.R. VOTE REP. 1996 House Roll No. 25 (1996). In the Senate, it passed by a final tally of 91 to 5. See S. VOTE REP. 1996 Senate Vote No. 8 (1996). In fact, in a rare moment of bipartisan exuberance, President Clinton stated that "[t]his bill is an indication of what can be done when Republicans and Democrats work together in a spirit of genuine cooperation to advance the public interest and bring us to a brighter future." Remarks, supra note 41, at 215.

(44.) See 142 CONG. REC. H1145, 1146 (daily ed. Feb. 1, 1996) (statement of Rep. Linder) [hereinafter Linder].

(45.) 141 CONG. REC. S12363, 12364 (daily ed. Aug. 11, 1995) (comments of Sen. Pressler).

(46.) Linder, supra note 44, at 1146.

(47.) See 142 CONG. REC. H1145, 1147 (daily ed. Feb. 1, 1996) (statement of Rep. Klug) [hereinafter Klug]. Echoing Rep. Klug, President Clinton also stated that "[t]his law is truly revolutionary legislation that will bring the future to our doorstep." Remarks, supra note 41, at 215.

(48.) Klug, supra note 47, at 1147.

(49.) 142 CONG. REC. H1078, 1078 (daily ed. Jan. 31, 1996) (The conference report addressed a committee conference prior to the Act's passage). See also AT&T Wireless PCS, Inc. v. City of Virginia Beach, 979 F. Supp. 416, 423 (E.D. Va. 1997) (citations omitted).

(50.) Sprint Spectrum L.P.v. Town of Easton, 982 F. Supp. 47, 49 (D. Mass. 1997) (citation omitted).

(51.) Sullivan, supra note 10, at 3.

(52.) Remarks, supra note 41, at 218.

(53.) See Timothy L. Gustin, Note, The Perpetual Growth and Controversy of the Cellular Superhighway: Cellular Tower Siting and the Telecommunications Act of 1996, 23 WM. MITCHELL L. REV. 1001, 1015 (1997).

(54.) Id. at 1016.

(55.) See id. The FCC website regarding state and local issues recognizes that the interstate and intrastate assignments of responsibilities in tower siting has been changed by the Telecommunication Act. See FCC, Focus on State & Local Government Issues (visited Nov. 10, 1999) <http://www.fcc.gov/statelocal/>.

(56.) Gustin, supra note 53, at 1016.

(57.) See Sullivan, supra note 10, at 4. "Under the TCA, state and local land use boards are required to take certain positive actions." Id.at 5.

(58.) 47 U.S.C. [sections] 332(c)(7)(B) (Supp. III 1997).

(59.) See Gustin, supra note 53, at 1016 (referring to 47 U.S.C. [sections] 332(c)(7)(B)(i)-(iii)).

(60.) 47 U.S.C. [sections] 332(c)(7).

(61.) 47 U.S.C. [sections] 332(c)(7)(A).

(62.) See S. REP. NO. 104-230, at 207-08 (1996). The section was developed pursuant to the recommendations of a "committee comprised of State and local governments, public safety agencies and the affected industries." Id. The committee's findings were intended to "develop a uniform policy ... for the siting of wireless tower sites [sic]." Id. at 207.

(63.) "It would be [a] gross understatement to say that the telecommunications Act of 1996 is not a model of clarity." AT&T Corp. v. Iowa Utils. Bd., 119 S.Ct. 721,738 (1999).

(64.) Gustin, supra note 53, at 1016. Congress did not intend "to abrogate local zoning authority" over sitting issues; however Congress demonstrated a commitment to "limit local authority in order to accomplish the national policies and standard of developing a competitive" wireless communication infrastructure. Id.

(65.) See id. At 1015 (suggesting that the restrictions which the Act placed on local authorities only exacerbate the already inherent conflicts between providers and zoning boards). Other commentators note the "[t]he rapid growth of cellular telephone communication has fueled" litigation as the industry expands. Donatelli, supra note 16, at 447.

(66.) For instance, the Second Circuit stated that the combined limitations to local authority "constitute a clear mandate to consider applications on a case-by-case basis." Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 640 (2d Cir. 1999).

(67.) Sprint Spectrum, L.P.v. Town of Easton, 982 F. Supp. 47, 49 (D. Mass. 1997) (citation omitted).

(68). Id. (citations omitted).

(69.) See Virginia Metronet, Inc. v. Board of Supervisors, 984 F. Supp. 966, 977 (E.D. Va. 1998).

(70.) Id. at 971.

(71.) Willoth, 176 F.3d at 644.

(72.) See id. at 640 (stating that "[i]t is a well-settled rule of statutory construction that `courts should disfavor interpretations of statutes that render language superfluous.'") (citations omitted).

(73.) See Smart SMR, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 704 A.2d 1271 (N.J. 1998); New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 733 A.2d 444 (N.J. 1999); AWACS, Inc. v. Clementon Zoning Bd. of Adjustment, 733 A.2d 453 (N.J. 1999).

(74.) See N.J. STAT. ANN. [sections] 40:55D-62 (West Supp. 1999).

(75.) See id.

(76.) See [sections] 40:55D-70(c).

(77.) See id.

(78.) See [sections] 40:55D-70(c)-(d) (West Supp. 1999).

(79). See [sections] 40:55D-70(d).

(80) See id.

(81.) See Smart SMR, Inc. v. Borough of Fair Lawn Bd. of Adjustment, 704 A.2d 1271, 1282-83 (N.J. 1998).

(82.) See id. at 1283-84.

(83.) See id.; see also, New Brunswick Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment, 733 A.2d 442 (N.J. 1999); AWACS, Inc. v. Clementon Zoning Bd. of Adjustment, 733 A.2d 453 (N.J. 1999).

(84.) N.J. STAT. ANN. [sections] 40:55D-70(d).

(85.) See Sica v. Board of Adjustment, 603 A.2d 30, 32 (N.J. 1992).

(86). Medici v. BPR Co., 526 A.2d 109, 110 (N.J. 1987). However, even though a property may be particularly suitable for a proposed use, that fact may not be sufficient alone to establish special reasons. See Funeral Home Management v. Basralian, 725 A.2d ,64, 68 (N.J. Super. Ct. App. Div. 1999).

(87.) 734 A.2d 817 (N.J. Super. Ct. App. Div. 1999).

(88.) See id. at 820.

(89.) See id. at 823 n.4.

(90.) See id. at 823-24.

(91.) 608 A.2d 469 (N.J. Super. Ct. Law Div. 1992).

(92.) See id. at 470-71.

(93.) Id. at 474. The court suggested that the proposed site was merely convenient and that it could not satisfy the special reasons requirement. See id.

(94.) See Sica v. Board of Adjustment, 603 A.2d 30, 32 (N.J. 1992).

(95.) Id.

(96.) Medici v. BPR Co., 526 A.2d 109, 119 (N.J. 1987). The "enhanced proof" requirement "is markedly consistent with the legislative policies underlying" the New Jersey Municipal Land Use Law. Id. at 120.

(97.) Id. The Medici ruling "has had a profound effect upon the evidence necessary to be presented to the board in use variance cases." WILLIAM COX, NEW JERSEY ZONING AND LAND USE ADMINISTRATION, [sections] 8-2, at 186 (1998).

(98.) See Medici, 526 A.2d at 120.

(99.) Id. at 119.

(100.) See id. at 119-20.

John E. Gregory, Jr., J.D. Candidate 2000, Rutgers School of Law -- Newark. Many thanks extended to Professor John Payne, Matt Kelsey, Maral Kazanjian, John F.B. Farley, and of course, Kathleen Chaves.