Borough of Fort Lee, NJ Article XV Wireless Telecommunications Facilities [1]

[Amended 12-13-2001 by Ord. No. 2001-51; 6-12-2003 by Ord. No. 2003-18; 3-3-2022 by Ord. No. 2022-3]

[1] Editor's Note: This article was formerly included as Ch. 141, Antennas, derived from Ch. XXV of the Revised General Ordinances of the Borough of Fort Lee, 1978, adopted 3-1-1979. Ordinance No. 2001-51, adopted 12-13-2001, provided for its relocation to this chapter.

§ 410-74 Purpose.

The purpose of this article for the siting, installation, alteration and maintenance of wireless telecommunications facilities, as the term is herein defined, is to:

A. Protect residential areas and land uses from potential adverse impacts of wireless telecommunications facilities;

B. Encourage the location of cellular facilities in appropriate locations;

C. Minimize the total number of cellular facilities throughout the Borough of Fort Lee;

D. Strongly encourage the co-location on approved wireless telecommunications facilities as a primary option rather than construction of new or additional single-use towers;

E. Encourage users of monopoles and antennas to locate them, to the extent possible, in areas where the adverse impact on the residential community is minimal, particularly to avoid adverse visual impacts upon residential dwellings;

F. Encourage users of monopoles and antennas to locate and configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques;

G. Enhance the ability of the providers of telecommunications services and emergency services to provide such services to the community quickly, effectively and efficiently;

H. Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures;

I. Ensure compliance with Federal Communications Commission regulations concerning eligible facilities requests to modify eligible support structures;

J. Ensure compliance with applicable environmental laws and regulations.

§ 410-75 Definitions.

For the purposes of this article, the following terms shall have the meanings indicated below:

BASE STATION, EXISTING

Any lawfully existing structure other than a tower that, at the time of review or consideration, already supports or houses lawfully existing FCC-licensed or FCC-authorized wireless transmission equipment, even if such structure was not initially built for the sole or primary purpose of supporting or housing wireless transmission equipment.

BASE STATION, PROPOSED

Any proposed or lawfully existing structure other than a tower that is being proposed to be used to support or house FCC-licensed or FCC-authorized wireless transmission equipment and which does not, at the time of such proposal, already support or house wireless transmission equipment.

ELIGIBLE FACILITIES REQUEST

The definition of an eligible facilities request is included in § 410-77 of this article.

EQUIPMENT COMPOUND

An area surrounding or adjacent to the base of a wireless telecommunications tower, or surrounding, adjacent to, within or upon a wireless telecommunications base station, in which wireless transmission equipment is located.

WIRELESS TELECOMMUNICATIONS FACILITY

The tower or base station and all wireless transmission equipment used in connection with any FCC-licensed or FCC-authorized wireless transmission.

WIRELESS TELECOMMUNICATIONS TOWER

Any structure built for the sole or primary purpose of supporting FCC-licensed or FCC-authorized wireless transmission equipment.

WIRELESS TRANSMISSION EQUIPMENT

Any antennas, including panel or multimodal antennas, small cell systems (such as exterior or interior "DAS" distributed antenna systems), or dish microwave antennas, that are used in connection with any FCC-licensed or FCC-authorized wireless transmission, and all other equipment associated with and necessary to their operation, including wires, cables, cabinets, and backup power equipment.

§ 410-76 Applicability.

All new wireless telecommunications facilities, including towers, antennas, distributed antenna systems (DAS) (also referred to as a "microcell," "booster" or "repeater" antenna system) on private property and publicly owned lands, but not in the Borough right-of-way, shall be subject to the regulations of this article, except as otherwise provided herein. The provisions of this article shall not govern any antenna that is owned and operated by a federally licensed amateur radio station operator or is used exclusively as a receive-only antenna in accordance with Federal Communications Commission regulations.

§ 410-77 Eligible facilities requests.

A. (No substantial change.) An eligible facilities request that does not substantially change the dimensions of an existing wireless telecommunications facility shall comply with the following:

(1) Reviewing authority. The Borough Zoning Officer is the reviewing authority for eligible facilities requests involving no substantial change. The Borough Telecommunications Consultant will assist the Borough Zoning Officer in all aspects of the implementation of this article.

(2) Fee. The application fee for an eligible facilities request involving no substantial change is specified in the section of this article entitled "Fees." The fee must be paid to the Zoning Officer prior to the issuance of the applicable zoning permit.

(3) Application. An application for an eligible facilities request involving no substantial change must include a completed zoning permit application, a plan drawn by an engineer or architect depicting the existing tower or base station and all proposed facilities and modifications, and other documentation as necessary to demonstrate that the request qualifies as an "eligible facilities request" and involves "no substantial change" as defined in this article.

(4) Filing. Applications for eligible facilities requests involving no substantial change must be filed with the Zoning Officer in paper format via mail, overnight delivery, or hand delivery, and also in electronic (.pdf or .doc) format via email, and copied simultaneously to the Planning Board in both formats.

(5) Prior municipal approvals. Applications for eligible facilities requests involving no substantial change must confirm, to the Zoning Officer's satisfaction, that the existing tower or base station, and all existing wireless telecommunications facilities located thereon, are lawfully in existence, and have been previously granted all necessary municipal land use and development approvals.

(6) Owners' consent. Applications for eligible facilities requests involving no substantial change must confirm, to the Zoning Officer's satisfaction, that the owner of the subject property, whether or not within a public right-of-way, and the owner of the subject tower or base station have given prior written consent to the proposed facilities and modifications.

(7) Federal laws. When reviewing an eligible facilities request involving no substantial change, the Zoning Officer, and any other Borough personnel designated to administer and review said request, shall apply the definition contained in 47 U.S.C. § 1455, as interpreted by FCC and defined herein. The Zoning Officer should be familiar with 47 U.S.C. § 332(c)(7) of the Communications Act of 1996; 47 U.S.C. § 1455 of the Spectrum Act; Federal Communications Commission Declaratory Ruling under WT Docket No. 08-165, adopted November 18, 2009; Federal Communications Commission Report and Order under WT Docket Nos. 13-238 and 13-32, and WC Docket No. 11-59, adopted October 17, 2014; and any subsequent applicable statutory or regulatory enactments; agency rulings or reports; and court opinions. The Zoning Officer shall, when necessary, rely on the Consultant in the application and interpretation of the foregoing.

(8) Request for additional information. If, based on his or her review of the application in consultation with the Planning Board and Telecommunications Consultant, as needed, the Zoning Officer concludes that additional information is needed to determine whether the application can be approved, the Zoning Officer may request such additional information from the applicant, but the applicant is not required to provide it.

(9) Interim denial pending further review. If the Zoning Officer is unable to reach a decision, per Subsection A(10) below, within 10 business days following the date the application was initially received by the Zoning Officer, the Zoning Officer must, within the ten-business-day period, issue a written notice of denial specifying that "the application is denied for purposes of N.J.S.A. 40:55D-18 pending further review and final decision pursuant to the applicable section of this article."

(10) Decision.

(a) If, based on his or her review of the application, and the advice and recommendations received from the Planning Board and Telecommunications Consultant, as applicable, the Zoning Officer concludes that the application proposes an eligible facilities request, the Zoning Officer must approve the application.

(b) If, based on his or her review of the application, and the recommendation of the Planning Board and the Telecommunications Consultant, the Zoning Officer concludes that the application does not propose an eligible facilities request, and involves a substantial change to the existing eligible support structure or wireless telecommunications facility, then the Zoning Officer must deny the application and refer the applicant to the applicable provisions of this article pertaining to modifications to existing eligible support structures that are not an eligible facilities request and which involve a substantial change to the existing facility.

(11) Deadline for final decision. The Zoning Officer must issue a written final decision on the application no less than 60 days following the date the application was initially received by the Zoning Officer. The decision may be issued via mail, email, overnight delivery, or hand delivery. The deadline for decision may be tolled or waived only upon the applicant's written consent; and once given, such consent may be withdrawn by the applicant at any time upon written notice to the Zoning Officer, provided that any such withdrawal, if given less than 10 days prior to the deadline expiration date, must allow the Zoning Officer at least 10 days to decide the application following the Zoning Officer's receipt of the consent withdrawal.

(12) Form of final decision. The Zoning Officer must memorialize his or her final decision by written approval or denial of the zoning permit application. The approval or denial must include a list of the plans and documents that comprised the application, with references to the dates, titles, and other descriptive features of those plans and documents.

B. Eligible support structure modification request (with substantial change). A request to modify a wireless telecommunications facility that substantially alters the existing dimensions shall comply with the following:

(1) Reviewing authority. The Borough Planning Board is the reviewing authority for modifications to eligible support structures that involve substantial change.

(2) Fees and review escrow deposits. Applicants for modifications to eligible support structures that involve substantial change must pay fees and review escrow deposits applicable for site plan review or waiver and all requested variances (and subdivision, if applicable), as well as the application fee and initial review escrow deposit specified for "eligible support structure modification with substantial change." All fees and review escrow deposits must be paid to the Planning Board Secretary when the application is filed.

(3) Application. An application for a modification to an eligible support structure involving substantial change must include all completed application forms for site plan review or waiver and all requested variances and may also include any other documentation reasonably necessary for the Planning Board to render a decision.

(4) Filing. Applications for modification to an eligible support structure involving substantial change must be filed with the Planning Board according to the Planning Board's requirements for all development applications involving site plan review or waiver and variances.

(5) Federal laws. When reviewing a modification to an eligible support structure involving substantial change, the Planning Board Planner should be familiar with 47 U.S.C. § 332(c)(7) of the Communications Act of 1996; 47 U.S.C. § 1455 of the Spectrum Act; Federal Communications Commission Declaratory Ruling under WT Docket No. 08-165, adopted November 18, 2009; Federal Communications Commission Report and Order under WT Docket Nos. 13-238 and 13-32, and WC Docket No. 11-59, adopted October 17, 2014; and any subsequent applicable statutory or regulatory enactments; agency rulings or reports; and court opinions, and may rely on the Telecommunications Consultant to provide guidance and interpretation in regard to these federal laws and regulations.

(6) Completeness review and deadline. Completeness review of applications under this subsection will be conducted by the Planning Board Attorney in consultation with the Planning Board Engineer, the Planning Board Secretary and the Telecommunications Consultant, as required. The deadline for completeness review, which is based on federal laws and regulations as opposed to the New Jersey Municipal Land Use Law,[1] is 30 days. If the Planning Board Attorney notifies the applicant of completeness deficiencies, in writing, within the thirty-day period, the deadline is tolled, but not reset. Subsequent incompleteness determinations must be issued, in writing, within 10 days following any subsequent submission. Unless certified complete or incomplete by the Planning Board Attorney within the thirty-day period from filing (or within the ten-day period from a subsequent submission), the application will be deemed complete upon expiration of the thirty-day period from filing (or upon expiration of the ten-day period from subsequent submission). The completeness deadline may be tolled or waived only upon the applicant's written consent; and once given, such consent may be withdrawn at any time by the applicant upon written notice to the Planning Board Attorney.

[1] Editor's Note: See N.J.S.A. 40:55d-1 et seq.

(7) Scheduling of hearing. Immediately following a certification or deeming of completeness of a request to modify an eligible support structure involving substantial change, the Planning Board Attorney must confer with the applicant's attorney or other authorized representative and the Planning Board Secretary to schedule the application hearing for a mutually acceptable hearing date, provided that the hearing date must be no later than 90 days following the application's initial filing date. Notice of the hearing must be mailed and published by the applicant as required by the New Jersey Municipal Land Use Law.

(8) Deadline for decision. The Planning Board must render its decision on a request to modify an eligible support structure involving substantial change no later than 90 days following the application's initial filing date. If the Planning Board believes that the applicant has provided insufficient information for approval of the application, and if the applicant will not provide the additional information and/or extend the ninety-day decision deadline as necessary for the Planning Board to continue its review, the Planning Board must deny the application within the ninety-day decision deadline. The deadline for decision may be tolled or waived only upon the applicant's written consent; and once given, such consent may be withdrawn by the applicant at any time upon written notice to the Planning Board Attorney, provided that any such withdrawal, if given less than 35 days prior to the decision deadline, must grant an extension of the decision deadline as necessary to allow the Planning Board to schedule the hearing for the next regular Planning Board meeting, with adequate time for the applicant to mail and publish notice as required by the New Jersey Municipal Land Use Law.

(9) Form of decision. The Planning Board must memorialize the decision by written resolution as required by, and within the time period specified by, N.J.S.A. 40:55D-10g.

C. New wireless telecommunications facilities, including new towers. New telecommunications facilities and towers shall comply with the following:

(1) Reviewing authority. The Borough Planning Board is the reviewing authority for all applications for the construction or installation of wireless telecommunications facilities, as defined herein, that are not eligible facilities requests, and which do not involve an eligible support structure, including any request for modification of an unlawfully existing wireless telecommunications tower or unlawfully existing base station or the wireless telecommunications facilities located thereon, or any request for installation of a wireless telecommunications facility at a "proposed base station," as defined herein, or the installation of a new wireless telecommunications facility at a previously unutilized location. For purposes of this section, such applications will be referred to generally as "wireless telecommunications facility siting applications."

(2) Fees and review escrow deposits. Applicants for wireless telecommunications facility siting applications must pay fees and review escrow deposits applicable for site plan review or waiver and all requested variances (and subdivision, if applicable), as well as the fee and initial review escrow deposit specified for a wireless telecommunications facility siting application. All fees and review escrow deposits must be paid to the Planning Board Secretary when the application is filed.

(3) Application. A wireless telecommunications facility siting application must include all completed application forms for site plan review or waiver and all requested variances (and subdivision, if applicable).

(4) Filing. Wireless telecommunications facility siting applications must be filed with the Planning Board according to the Planning Board's requirements for all development applications involving site plan review or waiver and variances (and subdivision, if applicable).

(5) Federal laws. When reviewing a wireless telecommunications facility siting application, the Planning Board Attorney should be familiar with 47 U.S.C. § 332(c)(7) of the Communications Act of 1996; 47 U.S.C. § 1455 of the Spectrum Act; Federal Communications Commission Declaratory Ruling under WT Docket No. 08-165, adopted November 18, 2009; Federal Communications Commission Report and Order under WT Docket Nos. 13-238 and 13-32, and WC Docket No. 11-59, adopted October 17, 2014; and any subsequent applicable statutory or regulatory enactments; agency rulings or reports; and court opinions, and may rely on the Telecommunications Consultant for guidance and interpretation of said federal laws and regulations.

(6) Siting and development standards. When reviewing a wireless telecommunications facility siting application, the Planning Board shall consider whether said application is in compliance with the applicable Subsection G location preferences, Subsection H development standards and Subsection I site design standards of this § 410-77, and shall make reasonable compliance with same a condition of approval when compliance is not otherwise substantiated via the submitted application documents.

(7) Completeness review and deadline. Completeness review of applications for wireless telecommunications facilities siting will be conducted by the Planning Board Attorney in consultation with the Planning Board Engineer, the Planning Board Planner, and the Planning Board Secretary. The deadline for completeness review, which is based on federal laws and regulations rather than the New Jersey Municipal Land Use Law,[2] is 30 days. If the Planning Board Attorney notifies the applicant of completeness deficiencies, in writing, within the thirty-day period, the deadline is tolled, but not reset. Subsequent incompleteness determinations must be issued, in writing, within 10 days following any subsequent submission. Unless certified complete or incomplete by the Planning Board Attorney within the thirty-day period from filing (or within the ten-day period from a subsequent submission), the application will be deemed complete upon expiration of the thirty-day period from filing (or upon expiration of the ten-day period from subsequent submission). The completeness deadline may be tolled or waived only upon the applicant's written consent; and once given, such consent may be withdrawn at any time by the applicant upon written notice to the Planning Board Attorney.

[2] Editor's Note: See N.J.S.A. 40:55d-1 et seq.

(8) Scheduling of hearing. Immediately following a certification or deeming of completeness of a wireless telecommunications facility siting application, the Planning Board Attorney must confer with the applicant's attorney or other authorized representative and the Planning Board Secretary to schedule the application hearing for a mutually acceptable hearing date, provided that the hearing date must be no later than 150 days following the application's initial filing date, or no later than 120 days following a certification or deeming of completeness pursuant to N.J.S.A. 40:55D-10.3, whichever is earlier. Notice of the hearing must be mailed and published by the applicant as required by the New Jersey Municipal Land Use Law.

(9) Deadline for decision. The Planning Board must render its decision on a wireless telecommunications facility siting application no later than 150 days following the application's initial filing date, or no later than 120 days following a certification or deeming of completeness pursuant to N.J.S.A. 40:55D-10.3, whichever is earlier. If the Planning Board believes that the applicant has provided insufficient information for approval of the application, and if the applicant will not provide the additional information and/or extend the 150- or 120-day decision deadline as necessary for the Planning Board to continue its review, the Planning Board must deny the application within the 150- or 120-day decision deadline. The deadline for decision may be tolled or waived only upon the applicant's written consent; and once given, such consent may be withdrawn by the applicant at any time upon written notice to the Planning Board Attorney, provided that any such withdrawal, if given less than 35 days prior to the decision deadline, must grant an extension of the decision deadline as necessary to allow the Planning Board to schedule the hearing for the next regular Planning Board meeting, with adequate time for the applicant to mail and publish notice as required by the New Jersey Municipal Land Use Law. Failure to decide the application within the decision deadline or any extension thereof will constitute an automatic approval of the application as filed.

(10) Form of decision. The Planning Board must memorialize the decision by written resolution as required by, and within the time period specified by, N.J.S.A. 40:55D-10g

D. Action on applications for wireless telecommunications facilities.

(1) Review of applications for eligible facilities requests. The Borough shall review the application in light of its conformity with applicable provisions of this article, and shall issue a zoning permit on nondiscriminatory terms and conditions, subject to the following requirements:

(a) The Borough shall act consistent with the following shot clock dates:

[1] Review of an application to co-locate a small wireless facility using an existing structure: 60 days.

[2] Review of an application to co-locate a facility other than a small wireless facility using an existing structure: 90 days.

[3] Review of an application to deploy a small wireless facility using a new structure: 90 days.

[4] Review of an application to deploy a facility other than a small wireless facility using a new structure: 150 days.

(2) Commencement of shot clock. The shot clock time frames referenced above begin upon submission by the applicant of required documentation for the first procedural step in the approval process, or when the applicant submits sufficient documentation to demonstrate compliance with Section 6409(a) of the Spectrum Act, whichever comes first.

(a) For an eligible facilities request with no substantial change, the shot clock commences upon submission of all documentation required for a zoning permit application.

(b) For request to modify an eligible support structure that involves substantial change, the shot clock commences upon submission of all documentation required for site plan approval, and any variances that may be required.

(c) For an application to install new wireless telecommunications facilities that is not an eligible facilities request or a modification of an eligible support structure, the shot clock commences upon submission of the required site plan and variance documentation required by the Planning Board, and which may vary based upon the zoning district in which the facility is proposed.

(d) The shot clock commences for all three instances upon application submission and not upon a determination of application completeness by the Borough.

(3) Tolling period. Unless a written agreement between the applicant and the Borough provides otherwise, the tolling period for an application (if any) is as set forth in Subsection D(3)(a) through (c) of this section:

(a) For an initial application to deploy small wireless facilities, if the Borough notifies the applicant on or before the 10th day after submission that the application is materially incomplete, and clearly and specifically identifies the missing documents or information and the specific rule or regulation creating the obligation to submit such documents or information, the shot clock date calculation shall restart at zero on the date on which the applicant submits all the documents and information identified by the Borough to render the application complete.

(b) For all other initial applications, the tolling period shall be the number of days from:

[1] The day after the date when the Borough notifies the applicant, in writing, that the application is materially incomplete and clearly and specifically identifies the missing documents or information that the applicant must submit to render the application complete and the specific rule or regulation creating this obligation; until.

[2] The date when the applicant submits all the documents and information identified by the siting authority to render the application complete;

[3] But only if the notice pursuant to the applicable section of this article is effectuated on or before the 30th day after the date when the application was submitted; or

(c) For resubmitted applications following a notice of deficiency, the tolling period shall be the number of days from:

[1] The day after the date when the Borough notifies the applicant, in writing, that the applicant's supplemental submission was not sufficient to render the application complete and clearly and specifically identifies the missing documents or information that need to be submitted based on the Borough's original request under the applicable section of this article; until

[2] The date when the applicant submits all the documents and information identified by the Borough to render the application complete;

[3] But only if the notice pursuant to the applicable section of this article is effectuated on or before the 10th day after the date when the applicant makes a supplemental submission in response to the Borough's request.

E. Eligible facilities request. The term "eligible facilities request" shall have the following definition:

(1) A request for a modification, as set forth in this section, of a lawfully existing wireless telecommunications tower or lawfully existing base station that does not substantially change the physical dimensions of such tower or base station as set forth in this Subsection E(4) herein, if approved by the Borough Zoning Officer pursuant to the procedures set forth in § 410-77A.

(2) Any eligible facilities request for modification of an unlawfully existing wireless telecommunications tower or an unlawfully existing base station, or for modification of a lawfully existing wireless telecommunications tower or lawfully existing base station that does substantially change the physical dimensions of such tower or base station as set forth in this subsection, is prohibited. See § 410-77B and C for procedures applicable to variance applications for wireless telecommunications facilities.

(3) An "eligible facilities request" is any request does not involve a substantial change to an eligible support structure and involves the following:

(a) Co-location of new wireless transmission equipment;

(b) Removal of wireless transmission equipment; or

(c) Replacement of wireless transmission equipment.

(4) A "substantial change" to the physical dimensions of an existing tower or base station is any change meeting the following criteria as measured against the dimensions of the tower or base station as of the date of its initial construction or as of February 21, 2012, whichever is later:

(a) Increase in height. An increase in the height of an existing tower or an existing base station constitutes a substantial change:

[1] For towers and base stations, if the increase in height is more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater, with the twenty-foot separation between the proposed antenna array and nearest existing antenna to mean the distance from the top of the highest existing antenna on the tower to the bottom of the proposed new antenna to be deployed above it; and

(b) Increase in width. An increase in the width of an existing tower or an existing base station constitutes a substantial change:

[1] If the increase would extend or protrude from the edge of the tower more than 20 feet, or more than the width of the tower as measured at the level of the increase, whichever is greater; and

(c) Increase in equipment cabinets. The addition of equipment cabinets constitutes a substantial change if it involves one or more of the following:

[1] Installation of ground cabinets that are more than 10% larger than existing cabinets at the facility.

[2] Installation of more than the standard number of new equipment cabinets for the technology involved, or more than four cabinets, whichever is less.

[3] Each separate application request constitutes a separate determination of the number of cabinets and the expansion of size beyond the existing facility, and is not factored as part of a cumulative total which applies to all applications for development.

(d) Excavation or deployment outside of current site. Excavation or deployment of equipment outside the current site of an existing tower or existing base station constitutes a substantial change when required for a proposed co-location if such excavation or deployment of equipment increases the square footage of the equipment compound to an area greater than 2,500 square feet, with "site" referring to, for towers, the leased or owned property surrounding the tower and any access or utility easements which serve the site, and to other supporting structures as the area in proximity to the structure and to equipment already deployed on the ground, except that modification of an existing site that entails ground excavation or deployment of transmission equipment up to 30 feet in any direction outside a tower's site constitutes an eligible facilities request that is not a substantial change; with "site" referring to the current boundaries of a facility that existed as of the date of the original support structure or a modification to that structure that was last reviewed and approved by the Borough, if the approval or modification occurred prior to the Spectrum Act or outside of the Section 6409(a) process.

(e) Defeat of existing concealment elements. If the existing concealment elements of an existing tower or existing base station would be defeated by a proposed co-location, an determined by a reasonable person viewing the structure and its intended concealment design as no longer effective after the co-location, the proposed co-location constitutes a substantial change.

(f) Failure to comply with prior conditions. A substantial change occurs if the proposed co-location fails to comply with conditions associated with the prior approval of the existing tower or existing base station, unless such noncompliance is due to an increase in height, an increase in width, an addition of cabinets, or a new excavation or deployment of equipment that does not exceed the corresponding "substantial change" thresholds set forth above.

F. Fees. The application fees shall be as follows:

(1) Eligible facilities request with no substantial change: $30.

(2) Modification to an eligible support structure that involves a substantial change: shall be pursuant to the Borough land development fee schedules for minor site plan review and conditional use approval before the Zoning Board; with the added provision that any such development review by the Planning Board or Zoning Board shall be accompanied by a compliance review by the Borough Consultant at a rate of $350/hour, not to exceed the reasonable amount of time necessary to review an application commensurate with its complexity and unique characteristics.

(3) New wireless telecommunications facilities: shall be pursuant to the Borough land development fee schedules for major site plan review; with the added provision that any such development review by the Planning Board or Zoning Board shall be accompanied by a compliance review by the Borough Consultant at a rate of $350/hour, not to exceed the reasonable amount of time necessary to review an application commensurate with its complexity and unique characteristics.

(4) Telecommunications Consultant review to ensure compliance with the following:

(a) The provisions of this article.

(b) Provision of a determination to the Zoning Officer of whether an application constitutes an eligible facilities request.

(c) Additional applicable land use regulations of the Borough.

(d) Applicable state and federal laws and regulations.

(e) Applicable federal laws and regulations.

(f) Fee: $350/hour, not to exceed the reasonable amount of time needed to review and make a determination based on the complexity of each specific application.

G. Location preference. If required for the provision of wireless communications service within the Borough, new wireless telecommunications facilities shall be permitted as a conditional use requiring site plan approval at the following prioritized locations:

(1) The first priority location shall be lands or structures owned by the Borough;

(2) The second priority location shall be co-location on existing wireless telecommunications facility towers (or existing water tanks), provided that the new installation does not increase the height by more than 10%; and

(3) The third priority location shall be such locations as the applicant proves are essential to provide required service to Borough residents.

(4) Commercial, business and industrial districts shall be prioritized over residential and open space and historical or environmentally sensitive districts.

(5) No district shall outright prohibit wireless telecommunications facilities and in no district are same a permitted use requiring only ministerial construction permits.

(6) In the event of a conflict between district zoning regulations and the regulations of this article, the regulations of this article shall control.

H. Development standards. To the extent possible while remaining compliant with federal laws and regulations, applications to install wireless telecommunications facilities or modify same shall comply with the following development standards:

(1) Height standards. Where permitted, wireless telecommunications facilities may exceed the maximum building height limitations, provided the height has the least visual impact and is not greater than required to achieve service area requirements and potential co-location, when visually appropriate. Wireless telecommunications facilities equipment compounds, shelters and platforms are limited to 12 feet in height.

(2) Setback standards. All wireless telecommunications facilities shall be subject to the minimum yard requirements of the zoning district in which they are located, provided the minimum setback may be increased where necessary to address safety concerns. If wireless telecommunications facilities are located on the roof of a building, the area of the equipment cabinets, shelters and other equipment and structures shall not occupy more than 25% of the roof area. The location on the roof for same shall be determined on a case-by-case basis.

(3) Visual impact. All wireless telecommunications facilities shall be located to minimize visual impacts on the surrounding area. When considering visual impact of roughly equal degree in comparative locations, locations in a higher priority category shall be deemed more acceptable than lower priority sites.

(4) Applicants must demonstrate that the proposed wireless telecommunications facility location provides the least visual impact on residential areas and public ways. All potential visual impacts must be analyzed to illustrate the selected site provides the best opportunity to minimize the visual impact of the proposed facility.

(5) Wireless telecommunications facilities should be located to avoid being visually solitary or prominent when viewed from residential areas and the public way. The facility should be obscured by vegetation, tree cover, topographic features and/or other structures to the maximum extent feasible.

(6) Wireless telecommunications facilities shall be placed to ensure that historically significant viewscapes, streetscapes and landscapes are protected. The views of and vistas from architecturally and/or significant structures should not be impaired or diminished by the placement of telecommunications facilities.

I. Site design standards. The following design standards shall apply to wireless telecommunications facilities installed, altered or modified pursuant to the terms of this article, with provisions clearly intended to apply only to towers and ground-level facilities, as opposed to rooftops or other types of installations, governing only those facilities:

(1) Fencing and other safety devices. Wireless telecommunications facilities shall be surrounded by a security feature such as a fence. All towers shall be designed with anticlimbing devices in order to prevent unauthorized access. Additional safety devices shall be permitted or required, as needed, and as approved by the Borough.

(2) Landscaping. Landscaping shall be provided along the perimeter of the security fence to provide a visual screen or buffer for adjoining private properties and the public right-of-way. Required front yard setback areas shall be landscaped. All facilities shall be screened by an evergreen hedge eight feet to 10 feet in height at planting time and/or a solid fence eight feet in height.

(3) Signs. Signs shall not be permitted except for signs displaying owner contact information, warnings, equipment information and safety instructions. Such signs shall not exceed two square feet in area. No commercial advertising shall be permitted on any wireless telecommunications facility.

(4) Color. The color of a facility shall be a color appropriate to the tower's locational context and to make it as unobtrusive as possible, unless otherwise required by the Federal Aviation Administration (FAA).

(5) Activity and access. All equipment shall be designed and automated to the greatest extent possible in order to reduce the need for on-site maintenance and thereby to minimize the need for vehicular trips to and from the site. Access shall be from established site access points whenever possible. Minimal off-street parking shall be permitted as needed and as approved by the Borough.

(6) Dish antennas. Dish antennas shall be colored, camouflaged or screened to make them as unobtrusive as possible, and in no case shall the diameter of a dish antenna exceed six feet.

(7) Lighting. No lighting is permitted except as follows:

(a) Wireless telecommunications facilities compounds and shelters enclosing electronic equipment may have security and safety lighting at the entrance, provided that the light is attached to the facility, is focused downward and is on timing devices and/or sensors so that the light is turned off when not needed for safety or security purposes; and

(b) No lighting is permitted on a tower or other supporting structure except lighting that specifically is required by the Federal Aviation Administration (FAA), and any such required lighting shall be focused and shielded to the greatest extent possible so as not to project towards adjacent and nearby properties.

(8) Monopole. Any proposed new telecommunications tower shall be a monopole unless the applicant can demonstrate that a different type of pole is necessary for the co-location of additional antennas on the tower. Such towers may employ camouflage technology.

(9) Noise. No equipment shall be operated so as to produce noise in excess of the limits set by the local ordinances pertaining to noise levels, nuisances and property maintenance, except for in emergency situations requiring the use of a backup generator.

(10) Radio frequency emissions. The TCA gives the FCC sole jurisdiction of the field of regulation of radio frequency (RF) emission, and wireless telecommunications facilities which meet the FCC standards shall not be conditioned or denied on the basis of RF impacts. Applicants shall provide current FCC information concerning wireless communications facilities and radio frequency emission standards. Applicants shall be required to provide information on the projected power density of the proposed facility and demonstrate how this meets the FCC standards.

(11) Structural integrity. Wireless telecommunications facilities must be constructed to the Electronic Industries Association/Telecommunications Industries Association (EIA/TIA) 222 Revision H Standard, entitled "Structural Standards for Steel Antenna Towers and Antenna Supporting Structures," (or equivalent), as it may be updated or amended.

§ 410-78 Miscellaneous provisions.

A. Maintenance of wireless telecommunications facilities. Facilities shall be maintained to assure their continued structural integrity and to ensure they do not create a visual nuisance. This may include, but is not limited to, trimming required hedges and other vegetation surrounding a facility, as well as a routine visual inspection to ensure the tower or supporting structure has not fallen into any state of disrepair so as to create an unsightly or hazardous condition. This maintenance provision applies especially after a natural disaster, flood, nor'easter, hurricane or other weather event which may negatively impact the facility.

B. Preexisting and nonconforming sites.

(1) Any wireless telecommunications facilities lawfully existing at the time of the adoption of the provisions of this article shall be permitted to continue operating and shall not be required to comply with the provisions of this article except at such time as any such lawfully existing wireless telecommunications facility is intended to be altered, modified, expanded or replaced, at which time said wireless telecommunications facility shall thereafter be required to comply with the provisions of this article.

(2) Nonconforming wireless telecommunications facilities which are partially damaged or destroyed due to any reason or cause may be repaired and restored to their former use, location and physical dimensions, subject to obtaining a building permit, but without otherwise complying with this article. If the destruction is greater than partial, then repair or restoration will require compliance with this article.

(3) The owner of any nonconforming wireless telecommunications facility may repair, rebuild and/or upgrade such facility (but not expand or increase its height or reduce its setbacks), in order to improve the structural integrity of the facility, to allow the facility to accommodate co-located antennas or facilities, or to upgrade the facilities to current engineering, technological or communications standards, without having to conform to the provisions of this article.

C. Violation of this article. Violation of any of the provisions of this article shall be a simple citation punishable with a civil penalty of $500 for each violation which continues more than 10 days after written notice of such violation is provided to the applicant. Each day, after such notice, that a violation occurs or is permitted to exist by the applicant constitutes a separate offense.

D. Governance of deployments in the public right-of-way. This article is intended to govern the installation, placement, maintenance, modification, upgrade and repair of wireless telecommunications facilities that are within the Borough but not located in the Borough right-of-way. The placement of telecommunications equipment within the public right-of-way shall be governed by Article XXII, Wireless Facilities in Right-of-Way, as well as by other applicable codes and ordinances of the Borough.

E. Removal of abandoned wireless telecommunications facilities. Any wireless telecommunications facility that is not operated for a continuous period of 12 months shall be considered abandoned. If there are two or more users of a single facility, then the abandonment shall not become effective until all users cease using the facility for a continuous period of 12 months. The owner of such facility shall remove same within 90 days of notice from the Zoning Officer that the facility is abandoned. If such facility is not removed within said 90 days, the municipality may remove such facility at the property owner's expense. If the facility is to be retained, the owner shall establish that the facility will be reused within one year of such discontinuance. If a facility is not reused within one year, a demolition permit shall be obtained and the facility removed. At the discretion of the Zoning Officer, upon good cause shown, the one-year reuse period may be extended for a period not to exceed one additional year.

F. Waiver. The Borough Council, or other Borough person, agency or department with the authority to do so, may waive any provision or standard set forth in this article where it is demonstrated that the strict enforcement of said standard:

(1) Will prohibit or have the effect of prohibiting any telecommunications service pursuant to 47 U.S.C. § 253(a); or

(2) Will prohibit or have the effect of prohibiting personal wireless service pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II); or

(3) Will violate the provisions of Section 6409(a) of the 2012 Middle Class Tax Relief and Job Creation Act, also known as the "Spectrum Act."

(4) Will violate any requirement set forth in the FCC Order entitled "Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies," WT Docket No. 13-238 (October 17, 2014); or

(5) Will violate any requirement set forth in the FCC Order entitled "IMO Implementation of State and Local Governments' Obligations to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012," WT Docket No. 19-250 (June 10, 2020); or

(6) Will violate any requirement set forth in the FCC Order entitled "IMO Implementation of State and Local Governments' Obligations to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012," WT Docket No. 19-250 (November 3, 2020); or

(7) Will violate the provisions of the New Jersey State Collocation Act, set forth in N.J.S.A. 40:55D-46.2;

(8) Will prohibit, or have the effect of prohibiting, the ability of an entity to provide wireless service to any prospective customer within the Borough.

G. Wireless consultant contact information. The Zoning Officer shall be the initial point of contact for the Borough for all matters concerning this article. The Borough, at its sole discretion, may appoint its expert Telecommunications Consultant or designee as the point of contact for all matters regarding this article.

H. Effective date. This article shall take effect 20 days after its adoption by the Borough Council.

§ 410-79 through § 410-80. (Reserved)