N.J. Residents Who Sought to Intervene in Verizon’s Tower Complaint Now Seek Its Dismissal

The seven residents of Belmar, New Jersey, who previously asked to intervene in Verizon’s complaint to force Monmouth County’s approval of an application to install nine small wireless facilities (SWFs) in the public rights of way (ROW) (see 2309280027) now seek dismissal of Verizon’s complaint, said their motion Tuesday (docket 3:23-cv-18091) in U.S. District Court for New Jersey in Trenton.

Verizon seeks an order requiring the county to approve the SWFs application under a preexisting ROW agreement and to execute a landowner consent form Verizon claims is a necessary prerequisite for a New Jersey Department of Environmental Protection (NJDEP) Coastal Area Facility Review Act (CAFRA) permit. Verizon alleges the county’s denial of its SWFs application was legally erroneous or invalid, and its failure to execute the consent form is also legally erroneous or invalid.

If the court doesn’t dismiss Verizon’s complaint, it should, under Rule 19, require joinder of the NJDEP, “which is an indispensable party,” said the seven residents’ memorandum of law in support of their motion to dismiss. The complaint should be dismissed because the New Jersey court lacks subject matter jurisdiction, said the residents, banding together as a grass-roots coalition they call Belmar Against 5G Towers. Children’s Health Defense also belongs to the coalition.

Verizon is incorrect when it argues Section 332(c)(7)(B) of the Communications Act confers jurisdiction, when it doesn’t, said the memorandum. Verizon also hasn’t stated a claim on which relief can be granted, it said. Each of Verizon’s federal claims is defective, it said. The claims don't “state a right entitled to relief and all should be dismissed,” it said. “The remaining state-law claims should also be dismissed,” it said.

The “mere fact” of the county’s denial doesn’t on its own “plausibly suggest an unlawful material inhibition” under the Communications Act, said the memorandum. It’s “equally plausible" that the county was acting under a recognized “safe harbor,” or that it was within its rights to deny Verizon’s application under the ROW agreement, it said.

Verizon submitted a request to add the nine SWFs through a May 10 letter and attached plans, said the memorandum. The county engineer reviewed those plans, and identified several deficiencies “that conflicted, or did not sufficiently demonstrate compliance,” with the ROW agreement, it said. Every deficiency has a direct relation to the “safe harbors” recognized by the FCC, “in that they pertain to protection of the public safety and welfare or are reasonably related to right-of-way management,” it said.

The Communications Act and FCC rules don’t “expressly or implicitly impose an affirmative obligation” that Monmouth County certify unknown assertions in a document it hasn’t seen -- here, a complete CAFRA permit, said the memorandum. The county, as a landowner, can’t be forced “to certify the contents of an application against its will and especially if it disagrees on the merits,” it said. There’s no lawful federally based duty “even if and to the extent a refusal to execute may result in a material inhibition,” it said.

Verizon failed to provide the full CAFRA application it demands that the county “certify,” said the memorandum. Even if it had done so, nothing in federal law compels the county to “certify” something “it may very well disagree with based on reasonable information and belief, backed by reliable science,” it said.

Verizon contends the NJDEP can’t regulate the environmental effects of wireless facilities, “even if those facilities’ operation would directly and materially impact listed species protected by federal and/or state law,” said the memorandum. Verizon is asserting “the astounding proposition that the FCC has preempted the operation and administration of programs overseen by entirely different federal agencies,” it said. NOAA has delegated authority to the NJDEP to run the CAFRA program, it said.

Verizon asserts that FCC rules “preempt any inconsistent federal substantive and procedural obligations,” said the memorandum. That’s not so and it can’t be so because one federal agency can’t preempt another, it said. Verizon’s legal argument, if accepted, would mean NJDEP will have only 10 days to review Verizon’s SWFs application “for sufficiency and completeness,” it said, but NJDEP rules “expressly provide for a 20-day sufficiency/completeness review period,” it said.

Verizon is “laying a trap,” said the memorandum. It’s trying to secure a favorable ruling from the court “that would bind the NJDEP and then gut the CAFRA application process and substantive environmental review Verizon pretends it merely wants to get started,” it said.