BELMAR — In an effort to bring an end to a lawsuit brought by Cellco Partnership, doing business as Verizon Wireless, which had filed a complaint in the hopes of expediting a proposal to install 18 wireless nodes along the boardwalk, the borough approved a tolling agreement in the hopes of resolving the issue out of court.
According to federal law, the borough had 90 days to consider Cellco’s proposal, which was sent to the borough on Jan. 13. The 90-day period ended on April 13. The tolling agreement would allow the borough and Cellco Partnership to settle the dispute despite time running out.
Speaking on the agreement at the borough’s May 18 council meeting, Mayor Mark Walsifer said that the borough had attempted to ensure that the poles installed by Verizon for the wireless facilities along the boardwalk would be aesthetically pleasing.
“We are not going to take it lightly and bow down to them, but in case the judge rules in their favor, which they do have the law on their side, we want to put this ordinance in place so then we can control the aesthetics and what gets put in our town,” the mayor said, adding that Verizon “has a good chance of prevailing.”
Ordinance 2021-15, approved unanimously on first reading and introduction, stipulates that utility poles constructed by cellular providers would need to conceal or disguise their small wireless facilities, as well as allow for multiple occupants and allow space for municipal use and equipment. That means Verizon would not be the sole cellular carrier allowed to use the utility pole.
“Verizon was unwilling to share with anybody, and one of the big things we were worried about is one pole for each company on Ocean Avenue. That would have made our oceanfront look horrible,” the mayor said.
Cellco Partnership is being represented by the law firm Price Meese Shulman & Armino, of Woodcliff Lake, which filed the complaint in the U.S. District Court for the District of New Jersey on May 10.
According to the filed complaint, which names the borough, Mayor Mark Walsifer and all four borough council members, the defendants’ “failure to act on applications submitted by Cellco for access to the public rights-of-way for authorization to place, construct, or modify personal wireless service facilities, in violation of Federal and New Jersey Law, and to grant injunctive and declaratory relief to Cellco permitting access to the public rights-of-way.”
The applicants are requesting that the court order the borough to expedite the approval process, as well as order the borough to pay legal fees.
The borough’s attorney, Jerry Dasti, did not respond to requests for comment.
The Telecommunications Act of 1996 set rules and regulations in order to “accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans,” according to the suit, including limitations on state and local governments when it comes to the time it takes to approve proposals from wireless providers.
In 2009, the Federal Communications Commissions issued the 2009 Shot Clock Order, which was revised in 2018, which gave local authorities 60 days to act on proposals for small wireless facilities on pre-existing structures and 90 days if a proposal includes the attachment of a small wireless facility using a new structure.
The applicant alleges that along with the application, a minor land-use application with a list of the 19 proposed facilities, engineering plans, foundation design analysis, electromagnetic exposure certifications, photo simulations and radiofrequency reports and network coverage map was also provided.
In court documents, attorneys for Cellco Partnership had numerous discussions with borough representatives that “spanned well over one year.” After being filed in January, the applicant alleges, the borough did not notify Cellco that the application was incomplete.
At a borough council meeting last August, Greg Meese, an attorney of the firm Price, Meese, Shulman & D’Arminio, appeared at a borough council meeting to present the plan to install wireless facilities along the boardwalk.
At the time, Mr. Meese said the plan would “address capacity issues that occur in Belmar during the summertime.”
“Certainly it is no surprise to any of you that in the summertime there is a lot more activity along Ocean Avenue and on the beach,” he said, adding that Verizon Wireless has received complaints from local police departments that they “are overloaded during the summertime.”
On Feb. 23 Borough Engineer John J. Freda, of Avakian Consulting, contacted the plaintiff for more information on the project, which was granted, according to the complaint.
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