T-Mobile prevails in long-standing legal action vs. Freehold Township

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FREEHOLD TOWNSHIP – T-Mobile’s proposed construction of a cellular communications tower at 169 Robertsville Road, Freehold Township, may proceed after the New Jersey Superior Court Appellate Division ruled in the company’s favor over Freehold Township officials who denied the issuance of construction permits for the tower.

A decision in favor of T-Mobile was made in the case between the company and the Freehold Township Planning Board on Oct. 15, according to a document from the court. The court’s ruling follows the board upholding the zoning officer’s denial of an application from T-Mobile to construct the cell tower.

The property at 169 Robertsville Road in a semi-rural area of Freehold Township was targeted for a cell tower by T-Mobile in 2007. For years, residents of the neighborhood have voiced their opposition to any plan that calls for the construction of a cell tower at the property.

The Freehold Township Zoning Board of Adjustment, which has since been combined with the Planning Board, denied the company’s application in 2009.

In 2011, T-Mobile received permission from the Superior Court to build the cell tower. No construction has ever taken place.

In late 2017, municipal officials issued a stop work order against the cell tower’s construction after equipment and materials to drill foundations were reported to have been mobilized at 169 Robertsville Road.

Township officials said the stop work order was issued because the construction permit T-Mobile possessed had expired and the company no longer had a valid construction permit.

An application from T-Mobile to install the cell tower was subsequently denied by the township zoning officer in 2018.

In denying the application, the zoning officer said the Superior Court ruled in favor of T-Mobile because of a gap in its coverage area, which was based on evidence that was produced before the zoning board during the hearings in 2008 and 2009.

Among other reasons, the zoning officer’s denial in 2018 was based on coverage differences between 2007 and 2017 and nearly a decade having elapsed since T-Mobile provided evidence of a coverage gap.

Later that year, representatives of T-Mobile appeared before the Planning Board to appeal the zoning officer’s order. The company’s representatives said the zoning officer did not have the authority to deny the cell tower’s application because of its prior approval in Superior Court.

After board members voted to uphold the zoning officer’s denial of the application, T-Mobile filed a motion in Superior Court to enforce the company’s rights.

According to the court document, a Superior Court judge ruled in favor of T-Mobile in January, finding that the 2011 order granted the company approval to construct a telecommunications tower and the board, through the zoning official, willfully failed to comply with that order.

The judge concluded that the filing of a new action by T-Mobile “to obtain the very approval it has already obtained belies logic and is a waste of judicial resources.”

Following an appeal from the Planning Board, the Superior Court reaffirmed the judge’s ruling in the Oct. 15 decision. In ruling against the denial of the construction permits, the court wrote that, “Public entities are not free to ignore court orders.”

According to the document, the court found that T-Mobile was not required to file a new complaint to enforce the 2011 order because it previously obtained judicial relief.

“The board (was empowered) to correct the zoning official’s error,” the document reads. “However, the board failed to do so, in direct violation of the 2011 order.”

The court rejected the board’s argument that the variance approval requires an updated application due to the time lapse between 2011 and the company’s request for construction permits because the approval of T-Mobile’s telecommunications tower was reviewed by two different courts, according to the document.

“The board cannot re-litigate a matter that it twice unsuccessfully challenged,” the document reads. “If the board believed a modification of plaintiff’s court-approved tower was required, the board had more than ample time to file a motion to modify or vacate the 2011 order.”