T-Mobile US drags New Jersey borough to court over school cell tower permit denial

Comms outfit says 'think of the children' isn't a legal reason to reject application

T-Mobile US is taking the borough of Wanaque in New Jersey to court for refusing to approve the company's plans to build a cell tower.

In a complaint [PDF] filed last week, T-Mob accused the Wanaque borough of rejecting its application to build a cell tower on invalid grounds. The cell tower in question is to be built on part of the borough's local high school, per the terms of a 25-year lease T-Mobile successfully bid for back in 2009.

T-Mobile's original plan for a cell tower was approved in 2010, but construction never started due to "funding priorities" likely to do with the ongoing recession at the time, and also to accommodate improvements to the high school's athletic fields.

Ever since, it's been paying the lease, T-Mobile says, and in March 2023 finally decided to get the ball rolling again. It filed a new application, paid $2,600 in fees, and presented documents pertaining to the local area's radio frequencies to show a lack of service that could be remedied by another tower, which T-Mobile says is the "least intrusive" solution.

The complaint says problems started soon after. T-Mobile was asked the following May by the borough's financial consultant to consider other locations for the cell tower. T-Mobile rejected this, arguing that the municipality couldn't make this kind of request when it involved a telecommunications building.

About a week later, according to the filing, T-Mobile reps attended a meeting with the Wanaque Planning Board. They were told that the official public meeting wouldn't be taking place that day because the borough council had passed a resolution earlier in the month saying T-Mobile had to get the borough mayor and council to approve the lease, which the phone company had been paying for over a decade at this point.

T-Mobile said it again asserted that because it was trying to build a cell tower, a telecommunications building, these demands were illegal. It also complained about the wasted time and money that resulted from not being informed about the council resolution.

Over the next few months, T-Mobile went back and forth with the local government until October, when the borough council finally approved the lease.

Wanaque planning board says cell towers not 'safe'

According to the telecoms giant, this wasn't the end of it. The planning board finally held a public meeting in December, where T-Mobile presented its case that adding another cell tower would fill in a deadzone in Wanaque. However, that meeting came to an end without any action being taken because the borough mayor apparently recommended that the planning board do something very different.

T-Mobile's filing says the mayor's plan was to hold a new public meeting to "answer the concerns of all residents" on whether the lease should be approved, something T-Mobile claims was already the case. The company said it was also asked to provide data on the health and safety effects of the cell tower, which T-Mobile says it had already given to Wanaque.

T-Mobile took particular issue over the board's talk of health concerns, because, so its argument goes in the filing, it's not a legal reason to reject an application to build a cell tower according to federal law.

In January, the board and T-Mobile held another meeting, which was contentious since the board's lawyer wanted to call an expert witness that would testify about public safety. To T-Mobile, that sounded awfully like the expert would be discussing health concerns, so it once again argued that such reasoning wasn't legally relevant to the approval. The lawyer assured the phone company that his witness would only discuss "alternative technologies."

However, the filing continued, as the next meeting in February approached, T-Mobile said it learned that the expert witness happened to be a professor who had authored articles about radio waves and their effects on health. It had also obtained a copy of the witness's PowerPoint presentation, which T-Mobile claims "was almost entirely related to RF health issues."

Naturally, T-Mobile objected to the expert witness's planned presentation for discussing the very thing it argued wasn't on the table. In the end, the presentation was changed and the board voted four to three to approve T-Mobile's application, albeit with many of the locals in attendance jeering at the decision, or so T-Mobile's filing claimed.

The three who had voted against the application made the classic argument of saying the cell tower would be dangerous for children, the complaint stated. "My answer is no, I don't think it's a good idea," one board member said. "I worry about the kids."

"They don't want to talk about health issues, and I can understand why," he continued, "because the FCC set these standards, which is … it's horrible."

Despite the application finally receiving approval, the board's lawyer quickly lobbied to have it overturned, and last May the board voted four to three again, but this time to deny T-Mobile's application. At this point, it had been over a year since T-Mobile submitted its 2023 application.

Once again, the board members that voted against the application cited child safety. One board member said he "cannot believe that this is safe and … healthy for the children of our town." Another said "it's [not] safe for the children."

"We're fighting a federal government that's made major screw-ups in everything right on down the line," a third board member argued. "And they're … all of a sudden 40 or 50 years later, they go back and say, you know I think we blew it. Well, I think they blew it on the regulations for this."

In all, T-Mobile has filed five counts against the Wanaque planning board and wants it to walk back its rejection of the application and to approve it immediately, as well as paying damages and legal fees. It also wants permanent injunctive relief prohibiting the town from "taking any further action" getting in the way of the company providing services in the area.

We've asked both T-Mobile and Wanaque to comment. As of the time of publication, neither have responded. ®

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