Case 3:23-cv-23072 Document 1 Filed 12/13/23 Page 1 of 50 PageID: 1

SNYDER & SNYDER, LLP

94 White Plains Road
Tarrytown, New York 10591
Tel.: (914) 333-0700
Fax: (914) 333-0743
Robert D. Gaudioso, Esq.
Jonathan D. Kaufman, Esq.
[email protected]
[email protected]
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
CELLCO PARTNERSHIP d/b/a VERIZON
WIRELESS,
Civil Action No. _________
Plaintiff,

v. COMPLAINT FOR
DECLARATORY AND
THE BOROUGH OF LAVALLETTE and THE INJUNCTIVE RELIEF AND
BOROUGH COUNCIL OF THE BOROUGH OF EXPEDITED REVIEW PURSUANT
LAVALLETTE, TO 47 U.S.C. § 332(c)(7)(B)(v)

Defendants.

Plaintiff CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS (“Plaintiff” or

“Verizon”), by its attorneys, Snyder and Snyder, LLP, as and for its Complaint against

defendants THE BOROUGH OF LAVALLETTE (the “Borough”) and THE BOROUGH

COUNCIL OF THE BOROUGH OF LAVALLETTE (the “Council”), (collectively,

“Defendants”) respectfully alleges as follows:

NATURE OF THE ACTION

1. The nation’s wireless infrastructure is a critical communications pathway

extensively employed and heavily relied on by the public—including residents and businesses,

the traveling public, emergency service providers, hospitals and health care professionals, law

enforcement personnel, government officials, and the 911 North American emergency system.
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Both Congress and the Federal Communications Commission (“FCC”) have emphasized the

importance of a seamless nationwide wireless network and the need to allow wireless carriers to

move quickly to construct needed facilities.

2. This action arises from Defendants’ unreasonable and unsupported denial of

Verizon’s application (the “Application”) for right-of-way permit approval from the Council for

the installation of five (5) small wireless facilities (“SWFs”) within the Borough’s public right of

way (“ROW”).

3. Each of these proposed SWFs meets the definition of “small wireless facility” as

set forth at 47 CFR § 1.6002(I).

4. The SWFs are personal wireless services facilities that will provide personal

wireless services (“Personal Wireless Services”) and telecommunication services

(“Telecommunications Services”), as those terms are defined in 47 U.S.C. §§ 332(c)(7)(C) and

153(53), respectively.

5. The proposed SWFs are necessary to remedy a significant gap in reliable wireless

service and to meet demand for Personal Wireless Services and Telecommunications Services.

6. The SWFs are the least intrusive means to remedy the significant gap in service.

7. The Defendants’ denial of the Application materially inhibited the provision of

Personal Wireless Services and Telecommunications Services.

8. Defendants have violated Section 704 of the Communications Act of 1934, as

amended by the Telecommunications Act of 1996 (the “Act”) and codified at 47 U.S.C. §§

253(a) and 332(c) (“§ 253(a)” and “§ 332(c)”, respectively). Specifically, Defendants have: (1)

prohibited and/or effectively prohibited Verizon’s provision of personal wireless services and

telecommunications services; (2) denied the Application without substantial evidence contained

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in the written record; (3) unreasonably delayed the Application; (4) illegally based the Denial

upon the federally preempted issue of environmental effects of radio frequency (“RF”)

emissions; and (5) imposed unreasonable and prohibitive application and code requirements,

including unreasonable, excessive, and prohibitive escrow charges and application fees, that

materially inhibit or limit Verizon’s ability to provide Personal Wireless Services and

Telecommunications Services to the public; all of which, individually, warrant injunctive relief

mandating that Defendants issue all required approvals for the construction of the SWFs

pursuant to the Act.

9. In addition, Defendants have violated Section 6409(a) of the Middle Class Tax

Relief and Job Creation Act of 2012, codified at 47 U.S.C. § 1455 (“Section 6409(a)”), and the

implementing regulations of this provision, 47 C.F.R. § 1.6100(c), by unlawfully denying

Plaintiff’s “Eligible Facilities Request” to collocate telecommunications equipment on an

existing wireless base station in the ROW, i.e., the pole located at or near 506 Oceanfront, which

Defendants were required to approve pursuant to Section 6409(a).

10. Furthermore, the Denial was arbitrary, capricious and unreasonable, and thus, in

violation of New Jersey law.

11. Verizon respectfully requests that this Court enter a declaratory judgment that the

Council’s Denial of the Application violates §§ 332(c) and 253(a), and Section 6409(a), is

preempted by the same and by the regulations and orders of the FCC, and is unlawful under New

Jersey law.

12. Verizon further respectfully requests that this Court issue permanent injunctive

relief: (a) reversing the Denial of the Application and directing Defendants to grant ROW permit

approval and issue all approvals and permits necessary to construct and operate the SWFs,

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without the imposition of any further fees; and (b) prohibiting Defendants, and any officer,

employee, or agent of the Defendants, from taking any further action that would prohibit or have

the effect of prohibiting Verizon from providing Personal Wireless Services and

Telecommunications Services to the Borough and surrounding areas with the SWFs.

13. Verizon further respectfully requests that this Court enter an Order requiring the

disgorgement and return of the fees paid by Verizon that are in excess of the FCC presumptively

reasonable limits, plus interest, from the date that Verizon submitted payment for such fees, and

awarding Verizon any and all additional damages and interest to which Verizon is lawfully

entitled, together with such other and further relief as the Court deems just and proper.

14. Verizon is entitled to an expedited review of this action pursuant to

§ 332(c)(7)(B)(v) of the Act, which provides that “[t]he court shall hear and decide such action

on an expedited basis.”

15. This action is ripe for determination under the Act and was timely filed.

THE PARTIES

16. Verizon is a general partnership formed under the laws of the State of Delaware,

which has been authorized to do business in the State of New Jersey and maintains its principal

place of business at One Verizon Way, Basking Ridge, New Jersey 07920. Verizon is licensed

by the FCC to construct and operate personal wireless service facilities throughout the United

States, including in the State of New Jersey and specifically the Borough, in order to provide

Personal Wireless Services and Telecommunications Services to the public.

17. Defendant Borough is a municipal corporation of the State of New Jersey with an

address at 1306 Grand Central Avenue, Lavallette, New Jersey 08735.

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18. Defendant Council is the governing body of the Borough that has been delegated

with the authority to, among other things, issue ROW permit approval for the installation of

small cell facilities within the Borough’s ROW and adopt amendments to the Revised General

Ordinances of the Borough of Lavallette. The Council has an address at 1306 Grand Central

Avenue, Lavallette, New Jersey 08735.

JURISDICTION AND VENUE

19. This Court has subject matter jurisdiction over this action pursuant to: (i) 47

U.S.C. § 332(c)(7)(B)(v) of the Act, because Verizon has been adversely affected and aggrieved

by Defendants’ actions in violation of 47 U.S.C. §§ 332(c)(7)(B) and 253(a); and (ii) 28 USC §

1331, because this is a civil action that presents federal questions arising under the Act, and

Section 6409(a) and the implementing regulations of this provision, 47 C.F.R. § 1.6100(c).

20. The Court has supplemental jurisdiction over all New Jersey state law claims

asserted herein pursuant to 28 U.S.C. § 1367(a).

21. This Court has authority to issue declaratory judgment and injunctive relief

pursuant to 28 U.S.C. §§ 2201, 2202.

22. This Court has personal jurisdiction over Defendants because Defendants are

domiciled within the state of New Jersey and because the claims stated herein arise out of the

acts and/or omissions committed by Defendants in the state.

23. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because: (1) the

property that is the subject of this action is located in the judicial district for the United States

District Court, District of New Jersey (the “District”); (2) a substantial part of the events or

omissions giving rise to this action occurred in the District; and (3) Defendants reside in the

District.

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24. There is a live controversy between the parties that includes a dispute over

whether the Denial of the Application is consistent with federal and state law.

The Important Federal Interests at Issue in this Case

25. As set forth in the Act and the FCC rules, regulations, and orders promulgated

pursuant thereto, Congress has declared a public need for wireless communication services such

as Personal Wireless Services and Telecommunications Services to be deployed without delay to

the public.

26. By enacting the Act, Congress: (1) sought to ensure federal control over radio

frequencies and over the licensing, frequencies of operations, and technical standards applicable

to the use of such frequencies; and (2) intended to “provide for a pro-competitive, deregulatory

national policy framework designed to accelerate rapidly private sector deployment of advanced

telecommunications and information technologies to all Americans.” H.R. Rep. No. 104-458, at

206 (1996) (Conf. Rep.); see 1996 U.S. Code Cong. and Adm. News, p. 10; see also City of

Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005).

27. Section 151 of the Act establishes a national policy to “make available, so far as

possible, to all people of the United States, without discrimination . . . a rapid, efficient, Nation-

wide, and world-wide wire and radio communication service with adequate facilities at

reasonable charges, for the purpose of national defense, [and] for the purpose of promoting

safety of life and property through the use of wire and radio communications.” 47 U.S.C. § 151.

In furtherance of this goal, the Act authorizes the FCC to enforce the provisions of the Act in

order to protect the ability of Personal Wireless Services providers and Telecommunications

Services providers to deploy their systems nationwide.

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28. The FCC regulates the provision of Personal Wireless Services and

Telecommunications Services to the public.

29. The FCC grants licenses to providers of Personal Wireless Services to use limited

resources, frequencies, and spectrum allocated by the FCC for the provision of such services to

the public.

30. These essential wireless services are needed to place those living and passing

through the area on equal footing with homes, businesses, and travelers throughout the state who

have access to wireless communication and data services, in furtherance of the national policy

goal that Congress and the FCC have repeatedly confirmed (i.e., to facilitate the rapid

deployment of wireless access so as to ensure that all Americans have access to this critical

utility).

31. The Act, while preserving state and local authority over the placement,

construction, or modification of wireless facilities, expressly preempts state or local governments

from effectively prohibiting the provision of Telecommunications Services and Personal

Wireless Services and from implementing decisions that are not supported by substantial

evidence.

32. Sections 332(c)(7)(B) and 253(a) of the Act impose a number of procedural and

substantive limitations on local zoning decisions and requirements to ensure that those decisions

and requirements do not frustrate the Act’s goals of promoting competition, higher quality

services, and the rapid deployment of new telecommunications technologies.

33. Section 332(c)(7)(B)(i) provides that:

The regulation of the placement, construction, and modification of personal

wireless service facilities by any State or local government or instrumentality
thereof –

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(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.

34. Section 332(c)(7)(B)(ii) provides that:

A State or local government or instrumentality thereof shall act on any request

for authorization to place, construct or modify personal wireless service facilities
within a reasonable period of time after the request is duly filed with such
government or instrumentality, taking into account the nature and scope of such
request.

35. In furtherance of the national policy to expedite wireless deployment, the FCC

adopted the Shot Clock Order,1 defining specific “reasonable” timeframes within which state and

local governments must act on wireless siting applications pursuant to Section 332(c)(7)(B)(ii).

Id. at ¶ 32 (“a ‘reasonable period of time’ is, presumptively 90 days to process personal wireless

service facility siting applications requesting collocations, and, also, presumptively, 150 days to

process all other applications”); 47 C.F.R. §1.6003(c)(1)(ii) and (iv).

36. The FCC recognized that “personal wireless service providers have often faced

lengthy and unreasonable delays in the consideration of their facility siting applications, and that

the persistence of such delays is impeding the deployment of advanced and emergency services.”

Id. at ¶ 4.

37. In so holding, the FCC sought to “promote[] the deployment of broadband and

other wireless services by reducing delays in the construction and improvement of wireless

networks.” Id. at ¶ 1.

38. On September 26, 2018, the FCC adopted its Declaratory Ruling and Third

Report and Order (“Small Cell Order”), establishing two new Section 332 shot clocks for

1
“Shot Clock Order” refers to In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B) to Ensure Timely Siting Review and to Preempt under Section 253 State and Local Ordinances that
Classify All Wireless Siting Proposals as Requiring a Variance, WT Docket No. 08-165, Declaratory Ruling, 24
F.C.C.R. 13994 (2009).

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SWFs—"60 days for reviewing the application for attachment of a Small Wireless Facility using

an existing structure and 90 days for the review of an application for attachment of a small

wireless facility using a new structure.” Accelerating Wireless Broadband Deployment by

Removing Barriers to Infrastructure Inv., 33 F.C.C.R. 9088, 9092 ¶ 13 (2018), aff’d in relevant

part sub nom, City of Portland v. U.S., 969 F.3d 1020 (9th Cir. 2020, cert. denied sub nom, City

of Portland, Oregon v. Fed. Commc’ns Comm’n, 141 S. Ct. 2855 (2021); 47 C.F.R.

§1.6003(c)(1)(i) and (iii).

39. “If a single application seeks authorization for multiple deployments, [i.e., for

both the collocation of a small wireless facility on existing structure and the installation of a

small wireless facility using a new structure], the presumptively reasonable period of time for the

[review of] the application as a whole is 90 days.” 47 C.F.R. §1.6003(c)(2)(ii).

40. Section 332(c)(7)(B)(iii) requires that:

Any decision by a State or local government or instrumentality thereof to deny a

request to place, construct, or modify personal wireless service facilities shall be
in writing and supported by substantial evidence contained in a written record.

41. Section 332(c)(7)(B)(iv) provides that:

No State or local government or instrumentality thereof may regulate the

placement, construction, and modification of personal wireless service facilities
on the basis of the environmental effects of radio frequency emissions to the
extent that such facilities comply with the Commission’s regulations concerning
such emissions.

42. Section 332(c)(7)(B)(v) provides that:

Any person adversely affected by any final decision or failure to act by a State or
local government or any instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action or failure to act, commence
an action in any court of competent jurisdiction. The court shall hear and decide
such action on an expedited basis.

43. Section 253(a) provides that:

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No State or local statute or regulation, or other State or local legal requirement,

may prohibit or have the effect of prohibiting the ability of any entity to provide
any interstate or intrastate telecommunications service.

44. In this same regard, Section 6409(a) governs certain requests for collocation,

removal, and modification of transmission equipment on existing wireless towers and base

stations. Section 6409(a) provides that such a request is an “Eligible Facilities Request” where it

“does not substantially change the physical dimensions of [the] tower or base station.”

“Notwithstanding any other law,” localities “may not deny, and shall approve,” an Eligible

Facilities Request. 47 U.S.C. §1455(a)(1).

45. In 2014, the FCC adopted rules implementing Section 6409, and authoritatively

interpreting a number of ambiguous terms in the statute. 47 C.F.R. § 1.6100 et seq. The FCC’s

rules and implementing order were affirmed by the United States Court of Appeals for the Fourth

Circuit. Montgomery Cty., Md. v. F.C.C., 811 F.3d 121, 124 (4th Cir. 2015).

46. The FCC has established criteria to determine whether a modification request

“substantially changes the physical dimensions of an eligible support structure.” See 47 C.F.R. §

1.40001(b)(7).

47. Verizon provides the infrastructure, such as that at the SWFs, for the provision of

mobile telephone and other Personal Wireless Services and Telecommunications Services in the

State of New Jersey in accordance with its FCC licenses.

48. Since Congress amended the Act in 1996, there has been a sea change in the

manner in which Americans use wireless services. According to the United States Department

of Health and Human Services and CTIA – The Wireless Association, the percentage of adults

and children living in wireless-only households has increased from 62.5% and 73.6% in the first

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half of 2020, respectively, to 72.6% and 81.9% as of the second half of 2022, respectively.2

According to Numbering Resource Utilization Forecast (NRUF) and CTIA – The Wireless

Association, the number of mobile devices in use has increased from 279.6 million in 2008, to

398.4 million in 2016, to over 523 million mobile devices in use today.3 Furthermore, according

to CTIA, wireless data usage has increased 190-fold from 2010 to 2022.4 These increases—

combined with other changes in technology, applications, and usage—has generated a need for

greater wireless coverage and capacity.

49. Moreover, for Americans living in wireless-only homes and for those traveling

outside of their homes, cell phones are often their only lifeline in emergencies. The ability to

reach 9-1-1 from one’s wireless phone has become a vital public safety tool. According to the

National Emergency Number Association, “[a]n estimated 240 million calls are made to 9-1-1 in

the U.S. each year. In many areas, 80% or more are from wireless devices.”5 Sufficient network

coverage and capacity are crucial to ensure these calls can reliably be completed.

50. To meet the policy goals of the Act, Verizon utilizes several licenses issued by the

FCC to provide a myriad of wireless services through an interlocking network of facilities that

permit the efficient reuse of frequencies allocated to it by the FCC.

2
Wireless Substitution: Early Release of Estimates from the National Health Interview Survey, January-June 2020,
https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless202102-508.pdf Wireless Substitution: Early Release of
Estimates from the National Health Interview Survey, July-December 2022,
https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless202305.pdf.
3
Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services
(2017) ¶ 19, p. 12; The Wireless Industry - Industry Data, https://www.ctia.org/the-wireless-industry/infographics-
library.
4
2023 Annual Survey Highlights, https://www.ctia.org/news/2023-annual-survey-highlights.

5
https://www.nena.org/page/911Statistics.

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51. To advance the national policies enumerated in the Act and underscored by

numerous FCC Declaratory Rulings, Verizon must construct and maintain a network of “cell

sites,” each of which consists of antennas and related electronic communications equipment

designed to send and receive radio signals over their licensed frequencies.

52. Given the increase in wireless-only households, reliable access to Verizon’s

services from within structures by means of wireless devices (i.e., in-building service) is crucial.

53. For a wireless network to perform well, personal wireless service and

telecommunications facilities sites must be located, constructed, and operated so that reliable

service can be achieved.

Facts Common to All Counts

54. The Borough is located adjacent to the Atlantic Ocean.

55. U.S. News and World Report published an article entitled “Best New Jersey

Beaches” on June 22, 2023 which lists the Borough as having one of the State of New Jersey’s

top beaches.

56. As a “shore municipality” and due to its beaches, many individuals and families

visit the Borough during the summer months.

57. As a result of this increased usage, and during peak times, Plaintiff’s network

experiences a lack of wireless capacity within the Borough.

58. This lack of capacity, in turn, creates a “blocking” of Plaintiff’s wireless system

where users may experience difficulty making and receiving telephone calls or text messages or

accessing the internet via their wireless devices.

59. In order to remedy this lack of capacity Plaintiff proposed to add six (6) new

SWFs within the Borough.

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60. Four (4) of the proposed SWFs were proposed to be located on new or

replacement utility poles within the Borough’s rights-of-way.

61. Two (2) of the proposed SWFs were proposed as modifications to existing SWFs

that were previously approved by the Borough.

62. The proposed SWFs were:

(1) JS TR Lavallette 02 SC (“Lavallette 02”) - Nearest to 72 Oceanfront -

Proposed installation of a SWF on proposed utility pole in the Borough ROW.

(2) JS Lavallette 03 SC (“Lavallette 03”) - Nearest to 102 President Avenue -

Proposed replacement of existing utility pole in the Borough ROW.

(3) JS Lavallette 09 SC (“Lavallette 09”) - Nearest to 2201 Baltimore Avenue -

Proposed installation of a SWF on proposed utility pole in the Borough ROW.

(4) JS Lavallette 11 SC (“Lavallette 11”) - Nearest to 100 Oceanfront6 - Proposed

replacement of existing utility pole located in the Borough ROW.

(5) JS Lavallette 13 SC (“Lavallette 13”) - Nearest to 506 Oceanfront7 - Proposed

modification of a SWF on an existing utility pole in the Borough ROW.

(6) JS Lavallette 12 (“Lavallette 12”) - Nearest to 110 White Avenue - Proposed

modification of a SWF on an existing utility pole in the New Jersey

Department of Transportation (“NJDOT”) ROW.

63. The Borough’s approval was not required for Lavallette 12 because same was

located within the NJDOT ROW. Plaintiff filed this site with the Borough for courtesy review.

6
During the course of its application with the Borough, Plaintiff corrected the address for this site. As initially filed,
the address was shown as “100 Ocean.” This was corrected to 100 Oceanfront.

7
This site was originally approved in 2021. Due to a typographical error, the approving resolution references an
address of 598 Oceanfront (an address that doesn’t exist).

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64. The Borough’s approval was required for the balance of the proposed SWFs.

The Borough Small Cell Code

65. On July 7, 2017 the Borough Council adopted an ordinance to regulate placement

of SWFs within the “Municipal Right-of-Way” by adopting Ordinance 2017-13, which added

Section 56-49 et seq. to the Revised General Ordinances of the Borough of Lavallette (the

“Small Cell Code”).

66. Section 56-50 of the Small Cell Code defines the term “Municipal Right-of-Way”

as the “surface of, and the space above or below any public street, road, place, public way or

place, sidewalk, alley, boulevard, parkway, drive or the like, held by the Borough as an easement

or in fee simple ownership. This term also includes the right-of-way held by the County of

Ocean where the Borough’s approval is required for the use of same pursuant to N.J.S.A. 27:16-

6.”

67. Section 56-50 of the Small Cell Code defines the term “Pole” as a “long, slender,

rounded piece of wood, metal or other materials.”

68. Section 56-50 of the Small Cell Code defines the term “Surrounding Streetscape”

as “existing poles within the same right-of-way, which are located within 500 feet of the

proposed pole.”

69. Section 56-52 of the Small Cell Code states that “no person shall operate or place

any type of pole-mounted antenna within the municipal right-of-way without first obtaining a

right-of-way permit pursuant to the provisions of this chapter.”

70. With respect to Pole Siting Standards, Section 56-53(B) of the Small Cell Code

provides as follows:

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(1) Height. No Pole shall be taller than 35 feet or 110% of the Poles in the surrounding

streetscape, whichever is higher.

(2) Distance from the Curb line. No Pole shall be farther than 18’ from the curb line.

(3) Location, safety and aesthetics. No Pole shall be erected in the municipal right-of-

way unless it:

a. Is replacing an existing pole; or

b. Is approved pursuant to a land development application by the Borough’s

Land Use [B]oard pursuant to a land use application; or

c. Is located on the opposite side of the street from a part of the electrical
distribution system; and

d. Is located in the municipal right-of-way located in the RA, RB and RC

zones, except as noted below; and

e. Is 200 linear feet from any other existing pole or proposed pole on the same
side of the street; and

f. Is not located in an area with underground utilities; and

g. Does not inhibit any existing sight triangles; and

h. Allows adequate room for the public to pass and repass along and across the
public right-of-way; and

i. Is finished and/or painted so as to blend compatibly with its background and

so as to minimize its visual impact on surrounding properties.

71. With respect to “pole-mounted antenna and pole-mounted cabinet siting

standards” Section 56-53(D) provides as follows:

(1) Pole-mounted antennas are permitted on existing poles, provided that each pole-

mounted antenna:

a. Does not exceed three cubic feet in volume; and

b. Is finished or painted and otherwise camouflaged in conformance with best

available stealth technology methods so as to blend in compatibly with its
background and so as to minimize its impact on surrounding properties; and

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c. Does not inhibit any existing sight triangles; and

d. Allows adequate room for the public to pass and repass along and across the
public right-of-way.

(2) Pole-mounted cabinets are permitted on existing poles, provided that each pole-

mounted cabinet:

a. Does not exceed 16 cubic feet in volume;

b. Is finished or painted and otherwise camouflaged in conformance with best

available stealth technology methods so as to blend compatibly with its
background and so as to minimize its visual impact on surround properties;
and

c. Does not inhibit any existing sight triangles; and

d. Allows adequate room for the public to pass and repass along and across the
public right-of-way.

72. With respect to the application process for approval of an SWF, Section 56-54 of

the Small Cell Code provides in pertinent part as follows:

B. The Borough Council shall, by resolution, approve or disapprove every right-of-way

permit application based upon the recommendations provided to it pursuant to
Subsections E and F below.

...

E. New poles and ground-level cabinets. The Lavallette Land Use Board shall, pursuant
to N.J.S.A. 40:55D-25(B)(3), review all applications for new poles and ground level
cabinets proposed to be located in the municipal right-of-way and advise the Borough
Council of its recommendations to approve, approve with conditions or deny such
application. If the Land Use Board recommends a denial of such application, it shall
set froth[sic] the factual basis for such denial in writing. If the Land Use Board
recommends approval with conditions, it shall set forth the factual basis for such
conditions in writing.

F. Pole-mounted antenna and pole-mounted cabinets.

(1) The Borough Engineer shall review all applications to place pole-mounted
antenna and pole-mounted cabinets within the municipal right-of-way and
advise the Lavallette Land Use Board and Borough Council of his or her
recommendation to approve, approve with conditions, or deny such

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applications. The provisions of Subsection E above shall apply to the Engineer

as to written findings.

(2) The Lavallette Land Use Board shall, pursuant to N.J.S.A. 40:55D-25(B)(3),
review all applications for new poles and ground level cabinets proposed to be
located in the municipal right-of-way and advise the Borough Council of its
recommendations to approve, approve with conditions or deny such
application. If the Land Use Board recommends a denial of such application,
it shall set froth[sic] the factual basis for such denial in writing. If the Land
Use Board recommends approval with conditions, it shall set forth the factual
basis for such conditions in writing.

G. If the Borough Council denies any application made under this section and chapter it

shall do so in writing and set forth the factual basis therefor.

H. Waiver. The Borough Council may waive any siting standard set forth in this chapter

where the applicant demonstrated that strict enforcement of any siting standard will:

(1) Prohibit or have the effect of prohibiting any interstate or intrastate

telecommunications service, pursuant to 47 U.S.C.A. § 253 (a); or

(2) Prohibit or have the effect of prohibiting personal wireless service, pursuant to
47 U.S.C.A. 332(c)(7)(B)(i)(II); or

(3) Will violate any requirement set forth in the Federal Communications
Commission Order entitled “Accelerating Wireless Broadband Deployment
by the Removal of Barriers to Infrastructure Investment,” WT Docket No. 17-
79; WC Docket No. 17-84.

The Application and Hearing Processes

73. On August 15, 2023, Plaintiff filed the Application for approval of the five (5)

SWFs to be located within the Borough’s ROW.

74. Defendants did not “notif[y Plaintiff] on or before the 10th day after submission

that the [A]pplication [wa]s materially incomplete” as is required to “restart [the shock clock

date calculation] at zero.” 47 C.F.R. §1.6003(d).

75. Furthermore, at no point did the parties enter into a written agreement to toll the

Shot Clock.

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76. Accordingly, pursuant to the Shot Clock, Defendants had to act upon the

Application, as a whole, by November 13, 2023. Small Cell Order, 33 F.C.C.R. at 9092 ¶ 13; 47

C.F.R. §1.6003(c)(2)(ii).

77. The Application included a $600.00 application fee and $2,000.00 escrow fee.

78. As part of the Application, Plaintiff also requested courtesy review for Lavallette

12, the existing site located within the NJDOT ROW.

79. The Application did not propose any pole in excess of 35’ in height.

80. Where Plaintiff proposed new poles or replacement poles, same were colored

brown to match other standard utility poles in the area.

81. Each proposed SWF used concealment shroud technology that was identical to

the concealment shrouds installed as part of previous SWF installations in the Borough.

82. Like previously installed SWFs in the Borough, the proposed antenna shrouds and

equipment cabinets were proposed to be colored gray.

83. The Application was scheduled for a hearing before the Borough’s Planning

Board (the “Planning Board”) on September 27, 2023 (the “First Planning Board Hearing”).

84. Michael Goldstein, P.E., the Planning Board Engineer, transmitted an engineer

review letter to the Planning Board and Plaintiff on September 19, 2023 (“First Engineering

Review Letter”).

85. The First Engineering Review Letter requested that certain changes be made to

the plans to show compliance with the Small Cell Code and also that photo simulations be

provided.

86. At the First Planning Board Hearing, Plaintiff provided engineering testimony

from Nate Slack.

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87. Mr. Slack is a project manager with Scherer Design Group and designed each of

the SWF plans.

88. Mr. Slack was accepted by the Planning Board as an expert in the design of

SWFs.

89. Mr. Slack went over each site in detail and testified that each of the proposed

SWFs complied with the requirements of the Small Cell Code.

90. During the course of the hearing, Plaintiff’s counsel discussed the Small Cell

Code and that the height limitation was solely on the pole and not the antennas.

91. Mr. Slack testified that the lowest portion of any proposed SWF must be 3’4”

away from any secondary power lines on the pole.

92. Mr. Slack testified that that requirement, along with the proposed antenna

stealthing, increased the height of the antennas atop the poles.

93. Mr. Slack also presented an example of a SWF without antenna stealthing and

discussed same with the Planning Board in comparison to the stealthing proposed in the

Application.

94. Mr. Slack testified that such a SWF (without stealthing) could be placed lower in

height because the 5G antennas could be flush mounted to the side of the pole and the 4G

cannister antenna would be placed atop the pole without additional stealthing above.

95. Mr. Slack also testified that signed and sealed structural analyses had been

provided for each of the proposed SWFs demonstrating compliance with all applicable codes and

requirements.

96. At the First Planning Board Hearing, Plaintiff also provided Radiofrequency

Engineering (“RF”) testimony from Andrew Petersohn, P.E.

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97. Mr. Petersohn provided uncontroverted testimony and documentary evidence with

respect to the need for the subject SWFs, which would provide additional capacity needed for

Verizon to provide reliable service within the Borough.

98. Mr. Petersohn testified that Verizon was seeking to “add additional resources to

offset . . . the demand that’s being placed on the network to absorb that capacity.”

99. Mr. Petersohn also presented a graph showing the existing wireless capacity in the

Borough and the various times over the summer months when wireless usage exceeded existing

capacity.

100. Mr. Petersohn testified that the SWFs would help ameliorate the “blocking”

caused by this lack of wireless capacity.

101. Mr. Petersohn also testified that each of the proposed SWFs would comply with

applicable FCC emissions requirements.

102. Mr. Petersohn’s analysis with respect to FCC emissions compliance for each SWF

was also set forth in a written report that was submitted to the Planning Board prior to the

hearing.

103. During the course of the hearing, Councilwoman Filippone raised concerns

regarding the continued validity of the FCC RF emissions standards stating, “in my opinion the

federal government doesn’t bring in good science, science changes so that data changes. So we

can go by 1995, 30-year-old data and tell everybody that this is safe.”

104. Based upon these concerns, the Planning Board requested that Plaintiff move the

site of Lavallette 09 because same was located next to a playground/public park, “[a]nd we

surely don’t want a pole so close to the ball field or so close [to] playgrounds.”

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105. Councilwoman Filippone added, “[t]here may be no poles there, but what is there

is our playground where our children are. I think it’s about time Verizon takes into account the

humane side of this nonsense. It doesn’t make me happy.”

106. Plaintiff agreed to move the site to a location away from the park as demanded by

the Planning Board.

107. Since there was no street address related to the public park adjacent to Lavallette

09, Plaintiff had to choose a nearby street address to help facilitate identification.

108. The closest street address to the proposed SWF (which was located close to the

corner of Elizabeth and Baltimore Avenues) was a property with an address of 2201 Baltimore

Avenue.

109. During the course of the First Planning Board Hearing, Councilwoman Filippone

objected to this location alleging that Plaintiff had misrepresented its location.

110. Plaintiff respectfully disagreed with Councilwoman Filippone’s position.

111. During the course of the First Planning Board Hearing, Plaintiff agreed to provide

photo simulations of the proposed SWFs.

112. Rather than allow the Council to act on any portion of the revised Application, the

Planning Board requested that Plaintiff return and submit a revised location for Lavallette 09 and

present photo simulations for its review and recommendation to the Borough Council.

113. Consequently, the matter was carried forward to the Planning Board’s October 25,

2023 meeting (“Second Planning Board Hearing”).

114. In response to the First Engineer Report, Plaintiff submitted revised plans,

surveys, and photo simulations for each SWF site and a new proposed location for Lavallette 09.

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115. With respect to Lavallette 09, Plaintiff proposed a new location nearest to 122

Newark Avenue.

116. The revised plans, which included the new location for Lavallette 09, lowered the

antenna heights of the proposed SWFs as follows.

Site Top of Pole Top of Antenna Concealment

Lavallette 02 28’-5” from 35’ 36’-6” from 43’-1”

Lavallette 03 32’-7” from 35’ 40’-8” from 43’-1”

Lavallette 09 32’-8” from 35’ 40’-9” from 43’-1”

(nearest to 122 Newark Ave)
Lavallette 11 32’-1” from 34’ 40’-2” from 42’-1”

Lavallette 13 32’-2” (no change) 40’-3” (no change)

Lavallette 12 32’-6” (no change) 40’-7”

(information only)

117. For the four (4) sites where the antennas were lowered, Plaintiff submitted revised

RF compliance reports and revised structural analyses to the Borough in advance of the Second

Planning Board Hearing.

118. The revised RF reports demonstrated compliance with applicable FCC standards.

119. The revised structural analysis demonstrated compliance with all applicable codes

and requirements.

120. Lavallette 13 and Lavallette 12 could not be lowered as these were existing SWFs

that were simply being modified by way of adding additional 4G antennas.

121. Prior to the Second Planning Board Hearing, Plaintiff learned that the Borough

had adopted Ordinance 2023-10 on August 21, 2023.

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122. Ordinance 2023-10 added additional regulations with respect to SWFs in the

Borough.

123. Ordinance 2023-10 did not explicitly repeal the Small Cell Code but directed the

“Borough administrator, Borough Clerk and Borough Attorney . . . [to] merge the provisions

contained herein with Ordinance 56-49 through 56-57 including but not limited to adding

additional section number to Article VIII 56. All Ordinances and parts of Ordinances or other

local requirements deemed by the Borough administrator, Borough Clerk and/or Borough

Attorney as inconsistent with this Ordinance are hereby repealed and superseded to the extent of

any such inconsistency or conflict, and the provisions of this Ordinance shall apply.”

124. Under New Jersey law, because the Application was filed prior to the enactment

of Ordinance 2023-10, it does not govern the Application.

125. Rather, the Small Cell Code governs the Application.

126. On October 20, 2023, the Planning Board Engineer issued a second engineering

review memorandum with respect to the revised Application (the “Second Planning Board

Engineer Report”).

127. The Second Planning Board Engineer Report found each SWF compliant with the

requirements of the Small Cell Code but requested that Plaintiff provide additional testimony

with respect to camouflaging.

128. At the Second Planning Board Hearing, Councilwoman Filippone argued that the

revised location for Lavallette 09 should be considered a “new application” subject to Ordinance

2023-10 and denied on that basis.

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129. Plaintiff disagreed with Councilwoman Filippone’s position and responded if the

Borough took that position, then the Applicant would have to proceed with the prior location for

Lavallette 09, a location which the Planning Board had asked Plaintiff to move.

130. Colleen Connolly, P.E. was presented to the Planning Board as an expert in

engineering and accepted by the Planning Board as same.

131. Ms. Connolly went over each of the four (4) sites where the antenna shrouding

was lowered.

132. Ms. Connolly provided testimony on the various requirements that inhibit the

relocation of telecommunications facilities, such as the SWFs, on utility poles.

133. Ms. Connolly testified that the National Electric Safety Code (“NESC”) requires a

3’4” clearance between communications lines and the nearest secondary electric lines above

same.

134. Ms. Connolly also testified that where there is more than one electrical line on a

utility pole, there needs to be a 1’ clearance between each line.

135. Because Plaintiff proposed to install communications equipment on existing and

proposed utility poles, Ms. Connolly testified that the NESC requires a 3’4” gap between the

highest electrical line and the lowest piece of equipment Plaintiff proposed to install.

136. Ms. Connolly testified that these requirements are controlling factors with respect

to the height of any pole and the antenna attachments thereon.

137. Ms. Connolly also testified that the existence of a guy wire on an existing pole

also limits the ability of Plaintiff to lower the antenna location on a pole.

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138. Ms. Connolly testified that she had performed a structural analysis for the poles

that had been lowered and that same complied with all applicable codes and requirements and

was structurally sound.

139. Ms. Connolly then went over each site and provided testimony on the lowered

heights previous set forth at ⁋ 116, above.

140. Ms. Connolly thereafter reviewed a photo simulation for each site and explained

how the proposed stealthing was aesthetically pleasing and matched stealthing for the sites

previously approved in the Borough.

141. During the course of the Second Planning Board Hearing, a Planning Board

member questioned whether a proposed SWF would be in compliance with the Small Cell Code

where the antennas were above 35’ and same was not specifically permitted.

142. Plaintiff’s counsel responded by focusing on the language of the Small Cell Code

and stating that antennas are not part of the height limitations set forth therein and that they are

only regulated by volume.

143. The Planning Board’s attorney also stated that the Application was not a request

for a “zoning approval” and that the Small Cell Code “limit[s] the height of the pole, itself, the

structure, but did not limit the height of the antenna to be put on that.”

144. Thereafter, Mr. Petersohn appeared before the Planning Board to provide

additional RF testimony.

145. Mr. Petersohn testified that he had conducted an RF emissions analysis for each

of the SWFs that had been lowered and for the revised location of Lavallette 09, and that same

complied with the applicable RF emissions requirements.

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146. Despite Mr. Petersohn’s testimony, Borough residents made comments in general

opposition to the SWFs based upon unfounded fears regarding potential environmental and

safety effects of RF emissions.

147. Councilwoman Filippone also continued to raise unfounded concerns regarding

RF exposure safety, stating, inter alia, that “I don’t believe the FCC gives one damn about us”

and “we’re not allowed to talk about the safety of this nonsense.”

148. During the deliberation portion of the Second Planning Board Hearing, certain

comments among the Planning Board members focused on concerns that the Borough was being

treated differently than other nearby municipalities.

149. These comments were made despite the fact that Plaintiff’s counsel clearly

indicated during the course of the hearing that Plaintiff sought to deploy SWFs in other New

Jersey municipalities, including shore municipalities.

150. During the deliberation, another basis for recommending denial was the allegation

that Plaintiff had misidentified the original location for Lavallette 09 (the site nearest to 2201

Baltimore Avenue).

151. During deliberation, another basis for recommending denial was the allegation

that the new location for Lavallette 09 (the site nearest to 122 Newark Avenue) was a new

location and should be subject to Ordinance 2023-10.

152. A motion was made and the Planning Board unanimously voted to recommend

that the Mayor and Council deny the Application.

153. Upon information and belief, no written resolution of denial setting forth the basis

for same was adopted by the Planning Board as is required by Section 56-54(E) of the Small Cell

Code.

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154. On November 2, 2023, Plaintiff submitted a letter to the Borough Clerk (the

“November 2nd Letter”).

155. The November 2nd Letter requested that the Application be placed on the

Council’s November 13, 2023 agenda, which would have been the 90th day following the filing

of the Application on August 15, 2023.

156. The November 2nd Letter also informed the Planning Board that Plaintiff

intended to proceed with having the Council review the original location for Lavallette 09

(nearest to 2201 Baltimore Avenue).

157. The November 2nd Letter contained revised plans and surveys for Lavallette 09,

which complied with the changes requested by way of the First Engineer Letter.

158. The November 2nd letter also contained a passing structural analysis and passing

RF compliance report for Lavallette 09 (nearest to 2201 Baltimore Avenue).

159. The plans were revised to lower the height of the proposed antenna as follows:

Site Top of Pole Top of Antenna Concealment

Lavallette 09 From 35’ to 28’-5” From 43’1” to 36’6”

160. In a letter dated November 8, 2023, the Borough requested that Verizon submit an

additional escrow payment in the amount of $3,595.00.

161. On November 20, 2023, Verizon submitted payment in full for the additional

$3,595.00 escrow fees and notified the Borough that such payment was made under protest as

the total amount charged for the Application to that date (i.e., $6,195.00) exceeds the FCC’s

presumptively reasonable fee limit for the Application (i.e., $4,500.00), and thus, is unlawful.

Small Cell Order at ¶ 79 (the presumptive limit for which local fees would not effectively

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prohibit the provision of wireless services under § 253 and 332(c)(7) is “$500 for non-recurring

fees, including a single up-front application that includes up to five [SWFs], with an additional

$100 for each [SWF] beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a

collocation) intended to support one or more [SWFs] . . . “).

162. On November 9, 2023, Borough Administrator Bennet notified Plaintiff that the

Council would consider its Application at the Council’s November 13, 2023 meeting (the

“Council Hearing”).

163. Plaintiff appeared before the Borough Council on November 13, 2023.

164. At the commencement of the Council Hearing, a member of the Council

requested that the Council reconvene in closed executive session to discuss the subject case;

however, the member did not explain the basis for the request other than claiming attorney-client

privilege.

165. Plaintiff’s counsel objected to this request as being in violation of the Open Public

Meetings Act; however, the Council retired into executive session nonetheless.

166. Once the Council reconvened, the Plaintiff began to present testimony.

167. At the request of Plaintiff’s counsel, the Borough Attorney confirmed that the

Council had not received a written memorialization of the Planning Board’s recommendation to

deny the Application or approved minutes reflecting same.

168. The Borough Attorney did, however, indicate that a copy of the Planning Board’s

un-approved minutes had been circulated to the Borough Attorney and/or Defendants.

169. However, no such minutes or any other written memorialization of the Planning

Board’s recommendation to deny the Application was provided to Plaintiff.

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170. During the course of the Council Hearing, and on the question of whether the

revised location for Lavallette 09 (nearest to 122 Newark Avenue), should be considered a new

application or be allowed to replace the initial location, the Council unanimously agreed to allow

the new location (nearest to 122 Newark Avenue) to replace the old location (nearest to 2201

Baltimore Avenue).

171. During the Council Hearing, Ms. Connolly was again accepted as an expert in

professional engineering.

172. Ms. Connolly confirmed that structural analyses had been performed for each

SWF and that each had been found compliant with all applicable codes and requirements.

173. Ms. Connolly went over the requirements of the Small Code with respect to

height and testified that because the proposed poles were all below 35’ same complied with the

height limit of 35’ or 110% of the streetscape.

174. Ms. Connolly again went over the requirements of the NESC and that same, along

with the existence of guy wires for certain sites, limited Plaintiff’s ability to lower the antennas

to all be below 35’ or 110% of the streetscape.

175. Additionally, Ms. Connolly testified that Plaintiff had analyzed the “streetscape”

as that term is defined in the Small Cell Code and determined that, in most instances, the

antennas of the proposed SWFs were below 110% of same.

176. During the course of the Council Hearing, Ms. Connolly testified to the following

proposed heights and the height of the existing streetscape.

Site Top of Pole Top of Antenna 110% of the Streetscape

Concealment
Lavallette 02 28’5” 36’6” 38.7’ (38’-8”)
Lavallette 03 32’7” 40’8” 40.9’ (40’-10”)
Lavallette 09 32’8” 40’9” 34.8’ (34’-9”)
(nearest to 122 Newark Ave.)

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Lavallette 11 32’1” 40’2” 36.5’ (36’-6”)

Lavallette 13 32’2” 40’3” 36.5 (36’-6”)
(no change) (no change)
Lavallette 12 32’6” 40’7” 59.84’ (59’-10”)
(information only) (no change) (no change)

177. Ms. Connolly testified that of the five (5) SWFs that made up the Application,

two (2) sites proposed to locate antenna concealment below 110% of the height of poles in the

streetscape.

178. These sites were Lavallette 02 and Lavallette 03.

179. Thus, even under an interpretation of the Small Cell Code that requires that the

height of the poles combined with antennas be limited to 35’ or 110% of the streetscape, these

two (2) SWFs complied with same.

180. Plaintiff’s counsel, while maintaining that an interpretation of the Small Cell

Code that required poles combined with antennas to be less than 35’ or 110% of the streetscape

was incorrect, for the balance of the sites requested that the Council waive these requirements

pursuant to Section 56-54(H) of the Small Cell Code given Plaintiff’s inability to lower these

SWFs any further due to limitations imposed by the NESC and existing guy wires.

181. Ms. Connolly also provided testimony with respect to changes proposed to

Lavallette 13, which proposed to modify a previously approved and existing SWF.

182. This testimony was provided to show that Lavallette 13 was an Eligible Facilities

Request that was not a “substantial change” in conformance with Section 6409(a) of the 2012

Middle Class Tax Relief Act (47 U.S.C § 1455) and applicable Federal Communications

Commission regulations and “must be approved” under federal law.

183. Ms. Connolly testified that the proposed modification would not increase the

height of the structure by the greater of 10’ or 10% of the existing height.

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184. Ms. Connolly testified that no proposed appurtenance would be greater than 6’

from the structure.

185. Ms. Connolly testified that no ground cabinets were proposed with respect to the

installation.

186. Ms. Connolly testified that there would be no deployment or excavation outside

of the current site.

187. Ms. Connolly testified that the proposed collocation would not defeat any

concealment elements of the existing SWF.

188. Ms. Connolly testified that the proposed modification would not violate any

condition of the existing SWF’s prior approval.

189. Ms. Connolly also provided additional testimony related to aesthetics.

190. Ms. Connolly submitted photographs of existing utility infrastructure located

within the Borough as an Exhibit to the Council.

191. Ms. Connolly reviewed and identified the infrastructure.

192. Ms. Connolly then submitted photo simulations to the Council showing each of

the proposed SWFs.

193. Ms. Connolly then reviewed each location and discussed the proposed aesthetics

of the antennas concealment and how same would be colored gray to match the SWFs that have

previously been placed in the Borough.

194. Ms. Connolly testified that where Plaintiff proposed new poles or replacement

poles, same were colored brown to match other standard utility poles in the area.

195. During the course of the Council hearing, Mayor LaCicero raised concerns with

the size of the antenna concealment shrouds.

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196. Near the close of the hearing, Plaintiff stipulated to remove the proposed antenna

concealment shrouds as a condition of approval, which would lower the overall height of the

proposed SWF by approximately 1’8”.

197. Mr. Petersohn was presented to the Council and accepted as an expert in RF

engineering.

198. Mr. Petersohn provided testimony with respect to the need for the subject SWFs

which would provide additional capacity needed for Verizon to provide reliable service within

the Borough.

199. Using various propagation maps, Mr. Petersohn showed that additional SWFs

were needed with respect to providing additional capacity and reliable service in the Borough.

200. Mr. Petersohn testified that Verizon was seeking to add additional resources to

offset the demand that’s being placed on the network.

201. Mr. Petersohn also presented a graph showing the existing wireless capacity in the

Borough and the various times over the summer months when wireless usage exceeded existing

capacity.

202. Mr. Petersohn testified that the Application would help ameliorate the “blocking”

caused by this lack of wireless capacity.

203. Mr. Petersohn also testified that each of the proposed SWFs would comply with

applicable FCC emissions requirements.

204. Despite Mr. Petersohn’s repeated testimony confirming that the SWFs would

comply with RF emissions requirements, Councilwoman Filippone continued to challenge Mr.

Petersohn’s findings and the safety of the SWFs.

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205. Notwithstanding Plaintiff’s compliance with the Small Cell Code, the Council

voted to deny the Application by a vote of five (5) to one (1).

206. The Council failed to issue or otherwise adopt a written resolution denying the

Application at its November 13, 2023 hearing.

207. Accordingly, Defendants failed to take a final action on the Application prior to

the expiration of the Shot Clock (i.e., on November 13, 2023). T-Mobile Ne. LLC v. City of

Wilmington, Delaware, 913 F.3d 311, 323 (3d Cir. 2019) (“a denial must be in writing to be a

final action, the issuance of [which] is the government ‘act’ ruled by the shot clock.”).

208. Defendants’ failure to take such final action within the designated time frame is a

violation of the TCA. ExteNet Sys. v City of E. Orange, No. 2:19-cv-21291 (WJM), 2020 U.S.

Dist. LEXIS 231126, at *9-10 (D.N.J. Dec. 9, 2020) (“if the locality does not issue a final written

decision within the presumptively reasonable time period, the locality’s inaction constitutes a

failure to act”) (citing 47 U.S.C. § 332(c)(7)(B)(v); Small Cell Order at ¶ 117).

209. On or about November 17, 2023, Plaintiff submitted an Open Public Records Act

(“OPRA”) request to the Borough requesting a copy of the Council’s written denial of the

Application.

210. The Borough’s response to the OPRA request was due on or about November 30,

2023.

211. However, on November 30, 2023, the Borough advised Plaintiff that “Mr. Burns,

our Borough Attorney, is doing this resolution” and that “it wouldn’t be ready until December 5,

2023.”

212. In fact, Defendants did not provide Plaintiff with the Council’s written denial of

the Application (the “Denial”) until December 6, 2023.

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213. Accordingly, the Council failed to issue a contemporaneous written decision in

violation of the Act. T-Mobile S., LLC v. City of Roswell, 574 US 293, 294 (2015) (holding

“[t]he City failed to comply with its statutory obligations under the [TCA]. Although it issued its

reasons in writing and did so in an acceptable form, it did not provide its written reasons

essentially contemporaneously with its . . . denial when it issued detailed minutes 26 days after

the date of the . . . denial”).

214. In its Denial, the Council allegedly incorporated by reference several documents

and/or materials, including but not limited to the following:

(1) the audio recording of the First and Second Planning Board Hearings and the Council

Hearing;

(2) the minutes of the First and Second Planning Board Hearings; and

(3) “the memorandum of the . . . Planning Board to the Borough of Lavallette Mayor and

Council dated November 1, 2023.”

215. However, Defendants have failed to provide Plaintiff with a copy of any of the

above-listed documents and/or materials.

216. In its Denial, the Council provided the following bases for denying the Application:

(1) “Verizon . . . did not demonstrate that the installation of additional small cell
facilities is required and/or necessary to provide telecommunication service.”

(2) “The number of small cell facilities currently installed in Lavallette plus the
additional locations applied for is disproportionately higher than any of the
surrounding communities.”

(3) “The number, height and location of the proposed small cell facilities is arbitrary
and capricious.”

(4) “The [A]pplication . . . does not consider the disruption and negative impact that
small cell facilities will have on the aesthetics and environment of the Borough of
Lavallette which is a barrier island town and Barnegat Bay and Atlantic Ocean
coastal community. Further, no information or data was provided that shows the
installation of the new small cell facilities in close proximity to the protective

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dunes and protective dune grass will not negatively impact the dunes or dune
grass.”

(5) “The Application . . . does not adequately address the Borough's safety concerns
including but not limited to:

a. The actual structural integrity of each individual pole.

b. The composition of the soil in which the poles will be installed.

c. Cellco Partnership d/b/a Verizon Wireless has not provided a soil report or
analysis of soil conditions at the various proposed locations. As a barrier
island and costal community sandy soil is common in the Borough of
Lavallette. Data has not been provided that demonstrates that the
additional weight on the poles can be adequately supported by the soil at
the current depth of the poles.

d. The negative impacts to health and wellness of residents and visitors alike
from the additional radiation emanating from the new small cell facilities.”

217. The Council’s basis for the Denial is in stark contrast to the undisputed evidence

in the written record, including:

(1) Mr. Petersohn’s testimony and documentary evidence establishing: (a) the need

for the subject SWFs; (2) that the SWFs, as designed, will ameliorate the need; and (3) that the

SWFs comply with the applicable FCC emissions requirements; and

(2) Ms. Connolly’s testimony and documentary evidence establishing that she had

performed a structural analysis for the poles (taking into consideration the soil) and that same

complied with all applicable codes and requirements and were structurally sound.

218. Mr. Slack’s testimony and documentary evidence established that the SWFs

comply with the requirements of the Small Cell Code.

219. Accordingly, the Denial is based upon criteria that is inapplicable to the

Application—an application for a ROW permit.

220. Moreover, at no time prior to the Denial did the Defendants raise an issue

pertaining to the sand dunes or dune grass.

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221. Thus, the Denial is based upon an impermissible post-hoc rationalization that has

no justification in law and is not based on substantial evidence contained in the written record.

222. Furthermore, the Denial is improperly based upon Defendants’ and Borough

residents’ concerns regarding the environmental effects of RF emissions.

223. Accordingly, the Denial is not supported by substantial evidence contained in the

written record.

224. Verizon has demonstrated the need for the injunctive relief requested herein,

including an order directing the Defendants to issue all necessary approvals for Verizon to

construct and operate the SWFs.

IRREPARABLE INJURY, PUBLIC INTEREST AND THE BALANCE OF HARDSHIPS

225. Verizon has demonstrated the need for the injunctive relief requested herein,

including an order directing the Defendants to issue all necessary approvals for Verizon to

construct and operate the SWFs.

226. As a result of the Defendants’ actions, Verizon, its customers, and the public have

been and will continue to be damaged and irreparably harmed absent the relief requested herein.

227. The injury to Verizon affects: (a) its ability to provide its customers with the high-

quality, reliable services they need and rightfully expect; (b) its ability to compete with other

providers of Personal Wireless Services and Telecommunications Services; (c) the full use of its

existing FCC licenses and business investments; and (d) the goodwill of its customers and its

business reputation.

228. The harm that Verizon has suffered and continues to suffer is not reasonably

susceptible to accurate calculation and cannot be fully and adequately addressed through an

award of damages.

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229. Moreover, the public interest in promoting competition in the telecommunications

arena and the rapid deployment of this evolving technology—the express goal of the Act—has

been and will continue to be irreparably harmed by the Defendants’ unlawful acts.

230. In addition, wireless telecommunications are an important component of public

safety and emergency response systems, and provide a vital alternative to traditional land lines

during times of public crisis. By preventing Verizon from installing the SWFs, which are

necessary to provide reliable Personal Wireless Services and Telecommunications Services, the

Defendants are causing irreparable harm to the public with deprivation or delay of reliable

emergency communications.

231. In contrast to the immediate and irreparable injury being suffered by Verizon, its

customers, and the public, the Defendants will suffer no significant injury if the Court issues the

requested injunctive relief. Moreover, Verizon has met all of the requirements for the approvals

it seeks under controlling local codes, state and federal laws, and/or precedent.

ALLEGATIONS SUPPORTING DECLARATORY RELIEF

232. A present and actual controversy has arisen and now exists between the parties

regarding their respective legal rights and duties. Verizon contends that the Defendants’ actions

are in violation of the Act and New Jersey state law and that it is entitled to all of the approvals

necessary to proceed with the project.

233. Verizon, its customers, and the public have been and will continue to be adversely

affected by the Defendants’ unlawful acts and any further delay in approval and construction of

the Facility.

234. Accordingly, declaratory relief is appropriate and necessary to adjudicate the

extent of Verizon’s rights and the Defendants’ duties and authority.

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COUNT I
Violation of 47 U.S.C. § 332(c)(7)(B)(iii) – The Denial of the Application
Was Not Based on Substantial Evidence in the Written Record

235. Verizon realleges and incorporates by reference the allegations contained in all

preceding paragraphs as if fully restated herein.

236. Section 332(c)(7)(B)(iii) of Title 47 of the U.S. Code provides that “[a]ny

decision by a State or local government or instrumentality thereof to deny a request to place,

construct, or modify personal wireless service facilities shall be in writing and supported by

substantial evidence contained in a written record.” (Emphasis added).

237. The Application satisfied the criteria specified in the Small Cell Code, state law,

and federal law for the requested approvals.

238. The Denial is inconsistent with the criteria specified in the Small Cell Code, state

law, and federal law.

239. The Denial eschews the actual factual evidence in the written record and rests

instead on claims unsupported by any credible evidence and in contradiction to the substantial

and credible evidence presented by Verizon, its experts, and the Planning Board’s engineer and

attorney, and is illegally based on the federally preempted issue of RF emissions.

240. The Denial merely relies upon conclusory statements without any support in the

written record, and fails to meet the minimum requirements for judicial review.

241. The Council’s basis for the Denial is ultra vires.

242. The written record does not contain substantial evidence that would lead an

objective and reasonable person to deny the Application.

243. The Denial is in violation of and preempted by 47 U.S.C. § 332(c)(7)(B)(iii) and

must be set aside and enjoined by the Court. Further, this Court should exercise its equitable

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power to issue an order directing Defendants to issue all local permits and approvals required to

construct and operate the SWFs.

COUNT II
Violation of 47 U.S.C. § 332(c)(7)(B)(ii) and the FCC Shot Clock – Unreasonable
Delay of the Application

244. Verizon realleges and incorporates by reference the allegations contained in all

preceding paragraphs as if fully restated herein.

245. 47 U.S.C. §332(c)(7)(B)(ii) provides that “A state or local government or

instrumentality thereof shall act on any request for authorization to place, construct, or modify

personal wireless service facilities within a reasonable period of time after the request is duly

filed with such government or instrumentality, taking into account the nature and scope of such

request.” (Emphasis supplied).

246. Under the FCC’s Small Cell Order, which operates with the force of law, a

“reasonable period of time” for action on a “single application seek[ing] authorization for

multiple deployments, [i.e., for both the collocation of a small wireless facility on existing

structure and the installation of a small wireless facility using a new structure], as a whole is 90

days.” 47 C.F.R. §1.6003(c)(2)(ii).

247. The Shot Clock Order, which also operates with the force of law, establishes that

if a local government, such as the Defendants, does not act upon an application within the

designated time frame, “then a failure to act” has occurred and the applicant may seek judicial

relief pursuant to 47 U.S.C. §332(c)(7)(B)(v). 24 F.C.C.R. 13994, at ¶32.

248. Defendants did not “notif[y Plaintiff] on or before the 10th day after submission

that the [A]pplication [wa]s materially incomplete” as is required to “restart [the shot clock date

calculation] at zero.” 47 C.F.R. §1.6003(d).

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249. Furthermore, at no point did the parties enter into a written agreement to toll the

Shot Clock.

250. Accordingly, the Shot Clock expired on November 13, 2023.

251. The Council failed to issue or otherwise adopt a written decision on the

Application by November 13, 2023.

252. Accordingly, Defendants failed to take a final action on the Application prior to

the expiration of the Shot Clock (i.e., on November 13, 2023). T-Mobile Ne. LLC v. City of

Wilmington, Delaware, 913 F.3d 311, 323 (3d Cir. 2019) (“a denial must be in writing to be a

final action, the issuance of [which] is the government ‘act’ ruled by the shot clock.”).

253. Defendants’ failure to take such final action within the designated time frame is a

violation of the TCA. ExteNet Sys. v City of E. Orange, No. 2:19-cv-21291 (WJM), 2020 U.S.

Dist. LEXIS 231126, at *9-10 (D.N.J. Dec. 9, 2020) (“if the locality does not issue a final written

decision within the presumptively reasonable time period, the locality’s inaction constitutes a

failure to act”) (citing 47 U.S.C. § 332(c)(7)(B)(v); Small Cell Order at ¶ 117).

254. Accordingly, the Defendants’ actions and failures to act must be set aside and

enjoined by the Court. Further, this Court should exercise its equitable power to issue an order

directing the Defendants to issue all local permits and approvals required to construct and

operate the SWFs.

COUNT III
Violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) – Effective Prohibition of Service

255. Verizon realleges and incorporates by reference the allegations contained in all

preceding paragraphs as if fully restated herein.

256. Section 332(c)(7)(B)(i)(II) of Title 47 of the U.S. Code provides that “[t]he

regulation of the placement, construction, and modification of personal wireless service facilities

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by any State or local government or instrumentality thereof . . . shall not prohibit or have the

effect of prohibiting the provision of personal wireless services.” (Emphasis added).

257. Federal district courts review “effective prohibition” claims under the Act on a de

novo basis, and such review is not limited to the record below.

258. The FCC has confirmed that a state or local legal requirement constitutes an

effective prohibition under Section 332 of the Act if it “materially limits or inhibits” a provider’s

ability to engage in any of a variety of activities related to its provision of a covered service.8

The FCC explained that “[t]his test is met not only when filling a coverage gap, but also when

densifying a wireless network, introducing new services or otherwise improving service

capabilities.”9

259. Adopting the FCC’s materially inhibit standard, this Circuit further explained that

“not only does insufficiency in coverage ordinarily entitle a provider to [zoning approvals] but so

does insufficiency in network capacity, 5G services, or new technology.” Cellco P’ship v. White

Deer Twp. Zoning Hearing Bd., 74 F.4th 96, 106 (3d Cir. 2023).

260. The administrative record, including but not limited to the documents and

testimony submitted by Verizon and its experts in support of the Application, demonstrate that

there is a significant gap in wireless service in and around the areas where the SWFs are

proposed.

261. The administrative record, including but not limited to the documents and

testimony submitted by Verizon and its experts in support of the Application, further

demonstrates that the SWFs are needed and the least intrusive means for Verizon to fill the

8
Small Cell Order, FCC 18-133, ¶ 40 n. 95.
9
Id. at ¶ 37 (internal citations omitted).

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significant gap in service, densify its network, introduce new services, and improve service

capabilities in the Borough and surrounding areas.

262. The Denial violates Section 332 because it materially inhibits Verizon from

providing personal wireless services in the Borough and surrounding areas, and materially

inhibits Verizon’s ability “to provide existing services more robustly, or at a better level of

quality, all to offer a more robust and competitive wireless service for the benefit of the

public.”10

263. The Denial effectively prohibits the provision of personal wireless services in

violation of § 332(c)(7)(B)(i)(II) of the Act. Accordingly, the Denial must be set aside and

enjoined by the Court. Further, this Court should exercise its equitable power to issue an order

directing Defendants to issue all local permits and approvals required to construct and operate

the SWFs.

COUNT IV
Violation of 47 U.S.C. § 253(a) – Prohibition of Service

264. Verizon realleges and incorporates by reference the allegations contained in all

preceding paragraphs as if fully restated herein.

265. 47 U.S.C. § 253(a) provides that “[n]o state or local statute or regulation, or other

State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any

entity to provide any interstate or intrastate telecommunications service.” (Emphasis added).

266. The FCC has confirmed that a state or local legal requirement constitutes a

prohibition under Section 253 of the Act if it “materially limits or inhibits” a provider’s ability to

engage in any of a variety of activities related to its provision of a covered service. 11 The FCC

10
Small Cell Order at ¶ 40 n. 95.
11
Small Cell Order, FCC 18-133, ¶¶ 34-40.

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explained that “[t]his test is met not only when filling a coverage gap, but also when densifying a

wireless network, introducing new services or otherwise improving service capabilities.”12

267. This Circuit has further explained that “not only does insufficiency in coverage

ordinarily entitle a provider to [zoning approvals] but so does insufficiency in network capacity,

5G services, or new technology.” Cellco P’ship v. White Deer Twp. Zoning Hearing Bd., 74

F.4th 96, 106 (3d Cir. 2023).

268. The administrative record, including but not limited to the documents and

testimony submitted by Verizon and its experts in support of the Application, demonstrate that

there is a significant gap in wireless service in and around the areas where the SWFs are

proposed.

269. The administrative record, including but not limited to the documents and

testimony submitted by Verizon and its experts in support of the Application, further

demonstrates that the SWFs are needed and the least intrusive means for Verizon to fill the

significant gap in service, densify its network, introduce new services, and improve service

capabilities in the Borough and surrounding areas.

270. The Denial violates Section 253 because it materially inhibits Verizon from

providing telecommunications services in the Borough and surrounding areas, and materially

inhibits Verizon’s ability “to provide existing services more robustly, or at a better level of

quality, all to offer a more robust and competitive wireless service for the benefit of the

public.”13

271. Moreover, the Small Cell Code and application review processes and criteria, as

applied by Defendants, and the resulting Denial of the Application, obstructed, prevented, and

12
Id. at ¶ 37 (internal citations omitted).
13
Small Cell Order at ¶ 40 n. 95.

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barred entry to the deployment of Verizon’s Telecommunications Services in the Borough and

surrounding areas.

272. Furthermore, the Borough’s escrow and application fees are excessive,

unreasonable, unnecessary, prohibitory and in violation of federal law, and thus, result in the

prohibition of telecommunications services.

273. Defendants’ prohibitive Small Cell Code, application review processes and

criteria, escrow and application fees, and resulting Denial are in violation of and preempted by

Section 253(a) of the Act, and must be set aside and enjoined on that basis. Further, this Court

should exercise its equitable power to issue an order directing Defendants to issue all local

permits and approvals required to construct and operate the SWFs.

COUNT V
Violation of 47 U.S.C. § 332(c)(7)(B)(iv) — The Denial of the Application Was Improperly
Based on Perceived Environmental Effects of Radio Frequency Emissions

274. Verizon realleges and incorporates by reference the allegations contained in all

preceding paragraphs as if fully restated herein.

275. Pursuant to 47 U.S.C. §332(c)(7)(B)(iv), “[n]o State or local government or

instrumentality thereof may regulate the placement, construction and modification of personal

wireless service facilities on the basis of the environmental effects of radio frequency emissions

to the extent that such facilities comply with the Commission’s regulations concerning such

emissions.”

276. Verizon submitted with its Application uncontroverted evidence that the SWFs

would be completely compliant with the limits and rules set by the FCC regarding RF emissions.

277. Opposition to the SWFs raised by the community and by members of the

Planning Board and Council was based on the unfounded concerns of RF exposure.

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278. Despite Verizon’s showing, Defendants capitulated to this opposition and denied

the Application based upon the federally preempted issue of RF exposure.

279. Specifically, Defendants relied upon the residents’ and Planning Board and

Council members’ unfounded concerns regarding the environmental effects of RF emissions.

280. The Defendants’ Denial illegally regulates the placement, construction and

modification of personal wireless service facilities on the basis of the environmental effects of

radio frequency emissions in violation of 47 U.S.C. §332(c)(7)(B)(iv) of the Act. Accordingly,

the Defendants’ Denial must be set aside and enjoined on that basis. Further, this Court should

exercise its equitable power to issue an order directing Defendants to issue all local permits and

approvals required to construct and operate the SWFs.

COUNT VI
The Denial of the Application for the Installation of Lavallette 13 Violated 47 U.S.C. §1455
and 47 C.F.R. § 1.6100

281. Verizon realleges and incorporates by reference the allegations contained in all

preceding paragraphs as if fully restated herein.

282. Section 6409(a) governs certain requests for collocation, removal, and

replacement of transmission equipment on existing wireless towers and base stations. Section

6409(a) provides that such a request is an “Eligible Facilities Request” where it “does not

substantially change the physical dimensions of [the] tower or base station.” “Notwithstanding

any other law,” localities “may not deny, and shall approve,” an Eligible Facilities Request. 47

U.S.C. §1455(a)(1).

283. In 2014, the FCC adopted rules implementing Section 6409(a), and authoritatively

interpreting a number of ambiguous terms in the statute. 47 C.F.R. § 1.6100 et seq. The FCC’s

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rules and implementing order were affirmed by the United States Court of Appeals for the Fourth

Circuit. Montgomery Cty., Md. v. F.C.C., 811 F.3d 121, 124 (4th Cir. 2015).

284. The FCC has established criteria to determine whether a modification request

“substantially changes the physical dimensions of an eligible support structure.” See 47 C.F.R. §

1.6100(b)(7).

285. Verizon submitted undisputed evidence, including testimony, establishing that the

portion of the Application for the installation of Lavallette 13 was an Eligible Facilities Request

that does not substantially modify the existing facility in conformance with Section 6409(a).

286. The Council’s Denial of the Eligible Facilities Request for the modification of the

existing SWF at Lavallette 13 exceeded its limited authority and is arbitrary, capricious,

unreasonable, and unlawful under New Jersey law.

287. Accordingly, the Defendants’ Denial of the Eligible Facilities Request for the

modification of Lavallette 13 violated 47 U.S.C. §1455 and 47 C.F.R. § 1.6100, and must be set

aside and enjoined on that basis. Further, this Court should exercise its equitable power to issue

an order directing Defendants to issue all local permits and approvals required to modify

Lavallette 13.

COUNT VII
The Denial of the Application was Arbitrary, Capricious, and
Unreasonable in Violation of New Jersey State Law

288. Verizon realleges and incorporates by reference the allegations contained in all

preceding paragraphs as if fully restated herein.

289. “Municipal action will be overturned by a court if it is arbitrary, capricious or

unreasonable.” Bryant v. City of Atlantic City, 309 N.J. Super 596, 610 (App. Div. 1998).

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290. The indisputable evidence presented by Verizon and the findings of Verizon’s

experts, and the Planning Board’s engineer and attorney demonstrated that Verizon is entitled to

the ROW permits requested because the Application and SWFs meet all of the applicable

requirements of the Small Cell Code, and state and federal laws.

291. Neither the Planning Board nor the Council presented any evidence to the

contrary.

292. Furthermore, the Council based its Denial upon issues that were not raised prior to

the Denial, and thus, the Denial is based upon an impermissible post-hoc rationalization that has

no justification in law and is not based on substantial evidence contained in the written record.

293. Accordingly, the Council’s Denial of the Application exceeded its limited

authority and is arbitrary, capricious, unreasonable, and unlawful under New Jersey law, and

must be set aside and enjoined on that basis. Further, this Court should exercise its equitable

power to issue an order directing Defendants to issue all local permits and approvals required to

construct and operated the SWFs.

WHEREFORE, Verizon respectfully demands judgment of this Court on the Counts set

forth above as follows:

1. On Count I, an order and judgment finding and declaring that the Denial was not

based on substantial evidence contained in the written record in violation of § 332(c)(7)(B)(iii) of

the Act, and mandating that Defendants immediately issue to Verizon all permits and approvals

required to construct and operate the SWFs.

2. On Count II, an order and judgment finding and declaring that Defendants

unreasonably delayed the Application by failing to act by November 13, 2023, in violation of §

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332(c)(7)(B)(ii) of the Act, and mandating that Defendants immediately issue to Verizon all

permits and approvals required to construct and operate the SWFs.

3. On Count III, an order and judgment finding and declaring that the Defendants

have effectively prohibited the provision of personal wireless services in violation of §

332(c)(7)(B)(i)(II) of the Act, and mandating that Defendants immediately issue to Verizon all

permits and approvals required to construct and operate the SWFs.

4. On Count IV, an order and judgment finding and declaring that the Defendants

have prohibited the provision of telecommunications services in violation of § 253(a) of the Act,

and mandating that Defendants immediately issue to Verizon all permits and approvals required

to construct and operate the SWFs.

5. On Count V, an order and judgment finding and declaring that Defendants

improperly based the Denial on the environmental effects of radio frequency emissions in

violation of § 332(c)(7)(B)(iv) of the Act, and mandating that Defendants immediately issue to

Verizon all permits and approvals required to construct and operate the SWFs.

6. On Count VI, an order and judgment finding and declaring that Defendants’

Denial of the Eligible Facilities Request for the modification of Lavallette 13 violated 47 U.S.C.

§1455 and 47 C.F.R. § 1.6100, and mandating that Defendants immediately issue to Verizon all

local permits and approvals required to modify Lavallette 13.

7. On Count VII, an order and judgment finding and declaring that Defendants’

Denial is arbitrary, capricious, and unreasonable in violation of New Jersey law, and mandating

that Defendants immediately issue to Verizon all permits and approvals required to construct and

operate the SWFs.

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8. On all Counts, an order: (1) granting permanent injunctive relief prohibiting

Defendants from taking any further action that would prohibit or have the effect of prohibiting

Verizon from providing Personal Wireless Services and Telecommunications Services to the

Borough and surrounding areas from the SWFs; and (2) mandating the disgorgement and return

of the fees paid by Verizon that are in excess of the FCC presumptive limits, plus interest from

the date that Verizon submitted payment for such fees, and awarding Verizon its costs, expenses,

and attorney fees, and any and all other damages and interest to which Verizon is lawfully

entitled, together with such other and further relief at law or equity as the Court deems just and

proper.

Dated: Tarrytown, New York

December 13, 2023 SNYDER & SNYDER, LLP

By: /s/ Robert D. Gaudioso

Robert D. Gaudioso, Esq.
Jonathan D. Kaufman, Esq.
94 White Plains Road
Tarrytown, New York 10591
(914) 333-0700
[email protected]
[email protected]
Attorneys for Plaintiff

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L. CIV. R. 11.2 CERTIFICATION

Pursuant to Local Civil Rule 11.2 and 28 U.S.C. § 1746, the undersigned member of the bar of

this Court hereby declares that the matter in controversy is not presently the subject of any other

action pending in any other Court, or of any pending arbitration or administrative proceeding.

SNYDER & SNYDER, LLP

By: /s/ Robert D. Gaudioso

Robert D. Gaudioso, Esq.
94 White Plains Road
Tarrytown, New York 10591
(914) 333-0700

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