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October 19, 2023 Big Tech Legal News

Legal

CHD Asks Court to Dismiss Verizon Lawsuit Against New Jersey County That Denied Permits for 5G Towers

Residents of Belmar, New Jersey, where Verizon wants to build nine 5G towers said their cellphone coverage is just fine without the towers and that the telecom giant is proposing a solution to a problem that doesn’t exist.

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Lawyers with Children’s Health Defense (CHD) on Wednesday filed a motion to dismiss a lawsuit brought last month by Verizon against a New Jersey county for denying the telecom giant’s application to build nine 5G towers on a stretch of boardwalk on county land in Belmar, New Jersey.

Belmar is a small borough in Monmouth County. The boardwalk, which runs along the Atlantic coast, is home to multiple endangered species.

CHD lawyers and a group of Belmar residents on Sept. 27 filed a motion to intervene in the case because they fear wildlife — and people, especially young children — will be negatively affected by the radiofrequency (RF) radiation emitted by the proposed towers.

Verizon sued Monmouth County after county officials on Aug. 8 denied the company’s project application citing, among other things, that Verizon had failed to submit a correct or complete application.

Rather than submit a correct and complete application to the county, Verizon sued the county and sought an order from a federal court judge to compel the county to approve its application.

Verizon also sought a ruling that would have prevented New Jersey’s Department of Environmental Protection (NJDEP) from following its environmental review processes via the Coastal Area Facility Review Act (CAFRA). Verizon argued that Federal Communications Commission (FCC) rules preempted state and local laws.

U.S. District Judge Michael A. Shipp has yet to formally grant the intervention, said W. Scott McCollough, chief litigator for CHD’s electromagnetic radiation (EMR) cases. McCollough filed the motion to intervene and the motion to dismiss.

“We’re very hopeful that we will be allowed to participate and that our motion to dismiss will be heard,” McCollough told The Defender.

Michael and Mary McHale, two of the Belmar residents seeking to intervene, said they oppose Verizon’s “corporate greed” as the company tries “to force unnecessary and potentially dangerous technology down our throats.”

The McHales, who’ve owned a home roughly 200 yards from the boardwalk for 10 years, told The Defender that Verizon’s proposed towers would forever change the natural setting.

Belmar — which translates as “beautiful sea” and is an “idyllic beach community,” they said — would become “a nightmarish jungle of stainless steel and aluminum antennas obscuring this beauty.”

Verizon has until Nov. 6 to respond to CHD’s motion to dismiss. Judge Shipp is expected to hold a hearing and/or render his decision on CHD’s motion to dismiss by Nov. 20.

McCollough requested oral arguments. He said judges typically like to hear oral arguments before rendering their decision, but sometimes judges issue decisions based solely on the filed paperwork.

Miriam Eckenfels-Garcia, director of CHD’s EMR efforts, said the organization hears from communities across the U.S. saying they don’t want these towers to go up near their homes and schools.

“We are proud to support the community in Belmar in their fight,” she told The Defender.

‘Verizon is laying a trap’

CHD’s memo in support of its motion to dismiss explained point by point why each of Verizon’s legal arguments should be struck down.

It opened with an argument that Verizon failed to state a claim, meaning even if the company’s factual allegations are true, they are insufficient to establish a cause of action and the case should therefore be dismissed.

McCollough, the memo’s lead author, accused Verizon of “laying a trap” in at least three ways.

First, Verizon is seeking to circumvent Monmouth County’s authority by trying to get a federal judge to issue a ruling that would force the county to accept Verizon’s application to build in the county’s right-of-way (ROW) area.

McCollough pointed out in the memo that the county engineer who reviewed Verizon’s ROW application “listed 9 deficiencies in the plans, any one of which would justify rejection, and Verizon has contested only 2 of them.”

Even if Verizon were correct in contesting two of the cited deficiencies, “There are seven other independent reasons for denial and any one of them is sufficient to not grant the request,” he said.

Second, Verizon wants the court to require the county to sign off on another application form called a “CAFRA landowner certification,” which Verizon said it needs before NJDEP grants it an environmental permit, known as a CAFRA permit, for the project.

McCollough argued, “The County, as a landowner, cannot be forced to certify the contents of an application against its will and especially if it disagrees on the merits.”

Third, Verizon is seeking a ruling from the judge that would limit NJDEP’s time for conducting the environmental review entailed in its CAFRA permitting process by alleging that the FCC shot clock rules apply.

The FCC’s shot clock rules “establish time frames within which state and local governments must complete their reviews.” In this situation, the shot clock rules would mean that NJDEP has only 90 days to complete its review.

McCollough meticulously explained to Shipp that, according to NJDEP’s rules, it’s not realistic to complete the numerous review stages and public hearings for Verizon’s project in 90 days.

“[Verizon] is trying to secure a ruling from this Court that would bind the NJDEP and then gut the CAFRA application process and substantive environmental review Verizon pretends it merely wants to get started,” he wrote.

If the court does not outright dismiss the case, it should at least require NJDEP to join the lawsuit as a listed party because “NJDEP is an indispensable party.”

NJDEP must have a voice in the lawsuit to “be able to protect its interests,” he said.

NJDEP did not immediately respond to The Defender’s request for comment on potentially joining the lawsuit.

‘What would be the health effects of the emitted radiation on this mother and child?’

Michael McHale said he opposed Verizon’s towers because of their potential impact on the community — particularly because the RF radiation emitted by 5G cell towers is potentially harmful to young children. He said:

“Picture for a moment, a young mother strolling on the boardwalk with a newborn baby in a carriage passing by nine 5G towers. What would be the health effects of the emitted radiation on this mother and child?

“Also, consider the fact that thousands of young children walk on the boardwalk and play on the beach. What will be the long-term health risks to these children?”

McHale questioned whether Verizon or the FCC could guarantee that the towers would have no ill effects on children because of exposure to the towers’ radiation.

‘A solution to a problem that doesn’t exist’

This is the second time Verizon has sued in an attempt to get its towers placed along Belmar’s beachfront.

On May 10, 2021, the telecom giant sued Belmar rather than the county, only to find out that the land in question was owned by the county.

Verizon then redoubled its efforts at getting project approval, this time at the county level.

Meanwhile, residents like Michael McHale have continued to emphasize that they do not need 5G towers on the Belmar beachfront.

“Cellphone coverage is perfectly adequate,” McHale said. “During the time we have lived here, we have never had a call dropped or lost coverage.”

“In fact,” he added, “in discussion with our neighbors and friends, no one has had a problem with call coverage. Verizon is proposing a solution to a problem that does not exist.”

Verizon’s lawyers did not immediately respond to a comment request from The Defender on CHD’s motion to dismiss.

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