The New Jersey Supreme Court's treatment of the wireless communications industry pursuant to New Jersey municipal land use law and the Telecommunications Act of 1996.

• Author: Gregory, John E., Jr.

1. 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.

2. THE WIRELESS COMMUNICATIONS INDUSTRY

   1. 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.

   2. 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)

   3. 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...