Kroeger v. Stahl

• Decision Date: 07 January 1957
• Docket Number: Civ. A. No. 509-56.
• Citation: 148 F. Supp. 403
• Parties: Peter T. KROEGER t/a Mobile Radio Dispatch Service, Plaintiff, v. Kenneth F. STAHL, Building Inspector of Greenbrook Township, A Municipal Corporation of New Jersey, the Board of Adjustment of Greenbrook Township and the Township of Greenbrook, A Municipal Corporation of New Jersey, Defendants.
• Court: U.S. District Court — District of New Jersey

148 F. Supp. 403

Peter T. KROEGER t/a Mobile Radio Dispatch Service, Plaintiff, v. Kenneth F. STAHL, Building Inspector of Greenbrook Township, A Municipal Corporation of New Jersey, the Board of Adjustment of Greenbrook Township and the Township of Greenbrook, A Municipal Corporation of New Jersey, Defendants.

Civ. A. No. 509-56.

United States District Court D. New Jersey.

January 7, 1957.

Frederick F. Richardson, New Brunswick, N. J., for plaintiff.

John Andrew Reid, Plainfield, N. J., for defendants.

FORMAN, Chief Judge.

In his complaint in this action, plaintiff, Peter T. Kroeger, trading as Mobile Radio Dispatch Service, alleges that he is a mobile land station radio operator, servicing diversified customers' mobile units in two-way radio communication both within and outside New Jersey, and licensed by the Federal Communications Commission, and that he desires for greater effectiveness in the operation of his business to transfer his presently operated station at New Brunswick, New Jersey, to a location on property he has purchased near Washington Rock, in Greenbrook Township, Somerset County, New Jersey. He further alleges that authorization to conduct radio tests at the proposed site was granted by the Federal Communications Commission, preparatory to a final determination by the Commission of the appropriateness of the proposed location; that an application was made by the plaintiff to defendant, Kenneth F. Stahl, Building Inspector of Greenbrook Township, for a building permit to construct a 75 foot radio mast, and a housing at the base of the mast for the necessary electrical equipment on his property in Greenbrook Township; that the application was denied on the ground that a zoning ordinance did not permit such a use in a residential zone.

Plaintiff claims that the refusal prevented him from carrying out what amounts to an order of the Federal Communications Commission. Plaintiff further claims that the zoning ordinance is an arbitrary and unreasonable exercise of the police power of the municipality by the defendants, the Board of Adjustment of Greenbrook Township and the Township of Greenbrook, in that it deprives him of property without due process of law and violates the equal protection clause of the Fourteenth Amendment; that operation of the zoning ordinance amounts to an undue burden on interstate commerce; and that his claimed status as a "public utility" renders him immune from the provisions of the zoning ordinance.

He prays for a judgment, among other things, requiring the defendants to cease and desist from interfering with the construction of the structure designed to conduct the tests and the operation thereof.

Defendants, in addition to challenging the plaintiff's assertions, interpose the objection that plaintiff is not properly before this court because of failure to have exhausted his administrative remedies.

I.

Proceeding at once to the jurisdictional question, it is well established that a suitor must exhaust his administrative remedies before seeking the extraordinary relief of a court of equity. Natural Gas Pipeline Co. of America v. Slattery, 1937, 302 U.S. 300, 58 S.Ct. 199, 82 L.Ed. 276; Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 58 S. Ct. 459, 82 L.Ed 638. But what remedy is plaintiff seeking that an administrative board may grant? He is seeking, not a variance, but to have the ordinance declared unconstitutional, a remedy beyond the jurisdiction of a board of adjustment. Honigfeld v. Byrnes, 1954, 14 N.J. 600, 103 A.2d 598; Fischer v. Township of Bedminster, 1950, 5 N.J. 534, 542, 76 A.2d 673. To this extent, then, plaintiff is properly before the court.

II.

The initial question presented by the plaintiff is whether the temporary authorization issued by the Federal Communications Commission was an "order" enforceable in a United States District Court, as contemplated in the provisions of the Federal Communications Act.¹

The paper itself is dated May 15, 1956, and is entitled specifically a grant of "Special Temporary Authorization" (Plaintiff's Exhibit 1A). It authorizes the plaintiff for a period of 90 days (which was later extended) at the location referred to in this suit to conduct tests to determine the extent and nature of the interference caused to Domestic Public Mobile Radio Station KEA 200 at Yonkers, New York, and Station KEA 255 at Hempstead, New York.

Among others, the paper contains the following conditions:

"This special temporary authorization is granted upon the express condition that it may be terminated by the Commission at any time without advance notice or hearing if in its discretion the need for such action arises. Nothing contained herein shall be construed as a finding by the Commission that the authority granted herein is or will be in the public interest beyond the express terms hereof.

"This special temporary authorization shall not vest in the grantee any right to operate the station nor any right in the use of the frequencies designated in the authorization beyond the term hereof, nor in any other manner than authorized herein. * * *"

It did not direct plaintiff or any one else to do anything. It simply granted a request of plaintiff that he be permitted to conduct certain tests under limited conditions expressed therein. A copy of the paper was sent by registered mail to the Building Inspector on June 6, 1956, by the plaintiff, five days before he commenced this suit.

Under the provisions of the Administrative Procedure Act of 1946, 5 U.S.C. A. § 1001(d), an "order" is defined as follows:

"`Order' means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) of any agency in any matter other than rule making but including licensing * * *."

In the instant case, without going into the question of whether defendants had been "duly served" with the "order", the permit issued to plaintiff was, as its title indicates, a "special temporary authorization", and not a final disposition.

In the light of this definition and the character of the temporary authorization as being in the nature of a grant or permission to plaintiff in fulfillment of his application to make tests, it would appear that its binding effect is only upon plaintiff and the radio stations named in it to the extent that the tests affecting them are permitted. It cannot be construed as an order encompassing the defendants in this case cognizable under Section 401(b) of the Federal Communications Act.

III.

The really crucial issue raised by the plaintiff is whether the zoning ordinance constitutes an undue burden on interstate commerce. Plaintiff contends that the instant case is analogous to or strongly parallels that of Transcontinental Gas Pipe Line Corp. v. Borough of Milltown, D.C.D.N.J.1950, 93 F.Supp. 287, where this court held that defendant Borough of Milltown's enforcement of its zoning ordinance, preventing plaintiff pipe line company from laying of a natural gas pipe line, constituted an undue burden on interstate commerce. I do not agree that the two cases are analogous. Although there are areas of similarity, the differences are decisive.

In Transcontinental Gas Pipe Line Corp. v. Borough of Milltown, supra, there was a company engaged in a project of great magnitude — the construction of an 1800 mile, 30 inch gas pipe line running through 14 states, at a cost of approximately $240,000,000. While size of investment is not determinative, it is a factor to be weighed in terms of the nature of its contribution to and effect on interstate commerce. The degree of importance of the pipe line corporation to interstate commerce was reflected in its having been endowed with the power of eminent domain by provisions of the Natural Gas Act, 15 U.S.C.A. § 717f(h). Where so endowed, the courts have held that they will not interfere with the discretionary exercise of such right in the absence of fraud, bad faith, or gross abuse, and that considerable discretion and latitude are allowed within this frame of reference. Williams v. Transcontinental Gas Pipe Line Corp., D.C.W.D.So.Car.1950, 89 F.Supp. 485, 489; Martin v. Portland Pipe Line Co., 1 Cir., 1946, 158 F.2d 848, 850.

Furthermore, the pipe line was being constructed two and a half feet underground; was neither dangerous nor aesthetically distasteful; and with one exception (in which it obtained permission of the owner) was laying its pipe line within the right of way of the Public Service Electric and Gas Company of New Jersey, with the latter's consent. And of no little importance was the fact that passage through Milltown was a necessary link in an already constructed chain which had practically reached the southern approaches to the municipality, and the enforcement of the zoning ordinance against the pipe line company was impeding its further progress.

Plaintiff, on the other hand, has an authorization for the purpose of conducting radio tests — a situation in no sense approximating the degree of utility or urgency involved in the pipe line case. Nor is plaintiff engaged in an extension of an already established or even prospective communications "chain", within the above-described context. Nor is his contemplated use of the land "invisible" — as is the case of the "buried" pipe line; quite to the contrary, in fact, he intends to erect a mast 75 feet above the ground.

Although the acquisition of land is not in issue here (since plaintiff already owns the land in question), it is important to note that plaintiff has not been endowed with the power of eminent domain, and its concomitant power to use the acquired land with broad discretion. The really relevant point, however, is not ownership or acquisition of land, but the use to which such land is to be put; and the question of whether the interference with such use constitutes an undue burden on interstate commerce basically hinges on the individual facts of the case.

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