N.J. City Unlawfully Denied Verizon’s Wireless Facility Application, Says Complaint

Verizon seeks expedited review of its allegations against Ocean City, New Jersey, for its “unreasonable and unsupportable” denial of Verizon’s application for “minor site plan approval” to build and install a personal wireless services facility, said its complaint Friday (docket 1:23-cv-04370) in U.S. District Court for New Jersey in Camden. The facility consists of antennas and related equipment and cabling on the roof of and on the ground adjacent to an existing two-story commercial building at the property in town, it said.

The antennas will be hidden by “stealth screening,” and three equipment cabinets on a raised platform at the rear of the building “will be screened by vegetation and a vinyl fence,” said Verizon. The proposed facility “is necessary to remedy a significant gap in reliable wireless service,” it said. It’s the “least intrusive means” to remedy that gap, it said.

Verizon’s application “satisfied the statutory criteria for approval” under New Jersey’s municipal land use law, but Ocean City’s planning board issued a written denial July 12, said the complaint. The city violated Section 704 of the Communications Act by effectively prohibiting Verizon’s provision of personal wireless services and because it denied the application without substantial evidence contained in the written record, it said.

Ocean City also illegally based the denial on the “federally preempted issue” of the environmental effects of RF emissions, said Verizon. The city imposed “unreasonable and prohibitive” application and code requirements that “materially inhibit or limit Verizon’s ability” to provide personal wireless services to the public, it said. All the unlawful conduct warrants injunctive relief, mandating that the city issue all “required approvals” for the construction of the facility, as the Communications Act requires, it said.

Ocean City's denial of the application "was arbitrary, capricious and unreasonable," and thus in violation of the municipal land use law, said the complaint. It seeks a declaratory judgment that denial of the application violates Sections 332(c) and 253(a) of the Communications Act, that the denial is preempted by that statute and by the regulations and orders of the FCC, and is unlawful under the municipal land use law, it said.

Verizon further seeks permanent injunctive relief, reversing the denial of the application and directing Ocean City to issue all approvals and permits necessary to build and operate the facility, said the company. It seeks to enjoin the city from “taking any further action” that would effectively prohibit Verizon from providing personal wireless services. It also seeks an order awarding Verizon “any and all damages and interest” to which Verizon is lawfully entitled, plus any other and further relief as the court “deems just and proper,” it said.