T-Mobile Files Lawsuit Over Twp.'s Cell Tower Denial

T-Mobile has filed suit against Bernards Township and the Bernards Township Zoning Board of Adjustment, claiming the denial of a cell phone tower on Stonehouse Road earlier this year was "arbitrary, capricious, unreasonable" and "without basis is law or fact."

The suit, filed Aug. 19 in the Civil Division of Superior Court in Somerville, also argues that the township's zoning ordinance, only allowing cell towers on municipally-owned land, is "improper and unconstitutional."

The suit, assigned to Superior Court Judge Thomas Miller, asks for a reversal of the board's denial of the tower application and approval of the application. In addition, T-Mobile's attorneys also are asking the judge to direct the township to grant a building permit for the tower.

According to the lawsuit, T-Mobile's frequency engineering department identified an area in the township that lacked reliable T-Mobile coverage. That led the company's site acquisition consultant to determine a potential site for a cell tower in the township.

After not finding any existing structures that could house a cell antenna, the utility concluded that a new tower would be required, the suit states. T-Mobile then contacted the township to see if any municipal land could be leased for the tower.

When the township refused, T-Mobile then sought a lease for the property at 25 Stonehouse Road in the B-2 (Neighborhood Business zone) for the tower and filed an application with the township on Oct. 16, 2009.

The application called for an 120-foot tower disguised as a flagpole that, because of the wooded area, could not be seen from the neighboring residential areas, the suit said.

The application required variances for use, height and setback that were brought before the township's Zoning Board of Adjustment.

After holding three public hearings, the zoning board denied the application on June 8. The suit claims that there was no expert testimony disputing any of T-Mobile's testimony in support of the application. The suit adds that the township's radio frequency expert agreed there was a "significant" gap of service in the township and the proposed tower would fill that gap.

The suit also alleges that the township's zoning ordinance, which only allows cell towers on municipal property, is "illegal, improper and unconstitutional."

Gregory Meese, of the Woodcliff Lake law firm of Price, Meese, Shulman and D'Armino, is representing T-Mobile.

Meese referred a request for comment on the case to T-Mobile, which has a policy of not commenting on pending litigation, according to a company representative.