The Telecommunications Act of 1996 affirmed the City of Trenton's
authority concerning the placement, construction and modification
of wireless telecommunications facilities. The City Council finds
that wireless telecommunications facilities and related equipment
may pose unique impacts upon the public health, safety and welfare
and environment of the City and its inhabitants and may have other
adverse impacts, visual and otherwise, upon the community, its character
and thus the quality of life in the City. The intent of this article
is to ensure that the placement, construction or modification of wireless
telecommunications facilities and related equipment is consistent
with the City's land use policies and ordinances; to minimize the
negative and adverse visual impact of wireless telecommunications
facilities; to assure a comprehensive review of environmental impacts
of such facilities; to protect the health, safety and welfare of the
City of Trenton; and to encourage shared use of wireless telecommunications
facilities.
For purposes of this article, the defined terms, phrases, words,
abbreviations and their derivations shall have the meaning given in
this section.
A facility or structure serving or being used in conjunction
with a telecommunications facility and located on the same property
or lot as the telecommunications facility, including, but not limited
to, utility or transmission equipment storage sheds or cabinets.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency signals. Such waves shall
include, but not be limited to, radio, television, cellular, paging,
personal telecommunications services (PCS) and microwave telecommunications.
The form approved by the Planning Board, together with all
necessary and appropriate documentation that an applicant submits
in order to receive a conditional use permit for a telecommunications
facility.
An antenna array that is applied or attached to a building
or structure with any accompanying pole or device that attaches the
antenna array to the building or structure and connection cables.
The location on a telecommunications tower which, in the
event of a failure of the tower, would result in the tower falling
or collapsing within the boundaries of the property on which the tower
is placed.
The City of Trenton, New Jersey.
The use of the same structure or telecommunications tower
to carry two or more antennas for the provision of wireless services
by two or more persons or entities.
Shall have the meaning in this article and any conditional
use permit granted hereunder as is defined and applied under the United
States Uniform Commercial Code (UCC).
The official document or permit by which an applicant is
allowed to construct and use a wireless telecommunications facility
as granted or issued by the City.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
Any structure that is specifically designed for the purpose
of supporting a wireless telecommunications device. This definition
shall include monopoles and self-supporting and guyed towers.
When referring to a tower or structure, the distance measured
from the grade level existing prior to construction of a tower or
if an existing structure, the grade level existing prior to application
to place a wireless telecommunications antenna to the highest point
on the tower or structure, even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or governmental entity.
See the definition for "wireless telecommunications facility."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
See the definition for "wireless telecommunications facility."
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
Any structure used in, associated with or necessary for the
provision of wireless services and as described in the definition
of "wireless telecommunications facility."
In relation to all aspects and components of this article,
less than 90 days.
A structure or location designed or intended to be used or
used to support antennas. It includes, without limit, antennas applied
to the facade of a building or roof-mounted antennas, freestanding
towers, guyed towers, monopoles and similar structures that employ
camouflage technology, and including, but not limited to, structures
such as a church steeple, water tower, flagpole, sign or other similar
structures intended to mitigate the visual impact of an antenna or
the functional equivalent of such. It is a facility or structure intended
for transmitting and/or receiving radio, television, cellular, paging
or personal telecommunications services or microwave telecommunications,
but excluding those used exclusively for fire, police and other dispatch
telecommunications or exclusively for private radio and television
reception and private citizens bands, amateur radios and other similar
telecommunications.
A.
In order to ensure that the placement, construction and modification
of wireless telecommunications facilities conforms to the City's purpose
and intent of this article, the City Council creates a conditional
use permit for a wireless telecommunications facility. It shall be
a violation of this article to erect, construct, replace or modify
a wireless telecommunications facility within the City of Trenton
without first obtaining a conditional use permit.
B.
Any conditional use permit for a wireless telecommunications facility
issued shall, to the greatest extent possible, conform to the following
goals:
(1)
Establish a policy for examining an application for and issuing
a conditional use permit for a wireless telecommunications facility
that is both fair and consistent.
(2)
Establish reasonable time frames for granting or not granting
a conditional use permit for a wireless telecommunications facility
or recertifying or revoking the conditional use permit granted under
this article.
(3)
Promote and encourage, wherever possible, the sharing and/or
co-location of a wireless telecommunications facility among service
providers.
(4)
Promote and encourage, wherever possible, the placement of a
wireless telecommunications facility in such a manner as to cause
minimal disruption to the land, property, buildings and other facilities
adjacent to, surrounding and in generally the same area as the requested
location of such a wireless telecommunications facility and to minimize
adverse aesthetic impacts to the community.
A.
All applicants for a conditional use permit for a wireless telecommunications
facility or any modification of such facility shall comply with the
requirements set forth in this section.
B.
All applicants for a conditional use permit for a wireless telecommunications
facility shall submit an application to the Department of Housing
and Economic Development's Planning Division on forms prepared by
the City of Trenton. An application for a wireless telecommunications
facility, as defined in this section, shall be directed by the Planning
Staff to the Planning Board for review and approval.
C.
An application for a conditional use permit for a wireless telecommunications
facility shall be made by the person or entity which will own the
wireless telecommunications facility and shall be signed on behalf
of the applicant by the person preparing the same and with knowledge
of the contents and representations made therein and attesting to
the truth and completeness of the information. The landowner, if different
from the applicant, shall also sign the application. At the discretion
of the Planning Board, any false or misleading statement in the application
may subject the applicant to denial of the application without further
consideration or opportunity for correction.
D.
Applications not meeting the requirements stated herein, or which
are otherwise incomplete, shall be rejected by the Planning Board.
E.
The applicant shall include a statement, in writing:
(1)
That the applicant's proposed wireless telecommunications facility
will be maintained in a safe manner and in compliance with all conditions
of the conditional use permit, without exception, unless specifically
granted relief by the Planning Board, in writing, as well as all applicable
and permissible local codes, rules and regulations, including any
and all applicable county, state and federal laws, rules and regulations.
(2)
That the construction of the wireless telecommunications facility
is legally permissible, including, but not limited to, the fact that
the applicant is authorized to do business in the State of New Jersey.
F.
No wireless telecommunications facility or tower or other structure
shall be installed or constructed for the purpose of providing wireless
telecommunications service until a plan of the site, including elevation,
is reviewed and approved by the Planning Board.
G.
All applications for the construction or installation of a new wireless
telecommunications facility shall be accompanied by a report containing
the information hereinafter set forth. The report shall be signed
by a licensed professional engineer registered in the State of New
Jersey and shall contain the following information. Where this section
calls for certification, such certification shall be by a qualified
State of New Jersey licensed professional engineer, unless otherwise
noted. The application shall include, in addition to the other requirements
for the conditional use permit, the following information:
(1)
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service primarily within the City.
(2)
Name and address of the person preparing the report.
(3)
Name and address of the property owner, operator and applicant,
to include the legal form of the applicant.
(4)
Postal address and Tax Map designation of the property.
(5)
Zoning district in which the property is situated.
(6)
Size of the property, stated both in square feet and lot line
dimensions, and a diagram showing the location of all lot lines.
(7)
Location of all residential structures within 750 feet in the
case of a freestanding tower and within 250 feet in the case of all
other wireless telecommunications facility applications.
(8)
Location of all schools and habitable structures within 750
feet in the case of a freestanding tower and within 250 feet in the
case of all other wireless telecommunications facility applications.
(9)
Location of all structures on the property which is the subject
of the application.
(10)
Location, size and height of all proposed and existing antennas
and all appurtenant structures.
(11)
Type, size and location of all proposed and existing landscaping.
(12)
The number, type and design of the wireless telecommunications
facility's antenna(s) proposed and the basis for the calculations
of the wireless telecommunications facility's capacity to accommodate
multiple users.
(13)
The make, model and manufacturer of the wireless facility and
antenna(s).
(14)
A description of the proposed wireless facility and antenna(s)
and all related fixtures, structures, appurtenances and apparatus,
including height above preexisting grade, materials, color and lighting.
(15)
The frequency, modulation and class of service of radio or other
transmitting equipment.
(16)
Transmission and maximum effective radiated power of the antenna(s).
(17)
Direction of maximum lobes and associated radiation of the antenna(s).
(18)
The applicant's proposed wireless facility maintenance and inspection
procedures and related system of records.
(19)
Certification that NIER levels at the proposed site are within
the threshold levels adopted by the FCC.
(20)
Certification that the proposed antenna(s) will not cause interference
with existing telecommunications devices.
(21)
A copy of the FCC license applicable for the use of the wireless
telecommunications facility.
(22)
Certification that a topographic and geomorphologic study and
analysis has been conducted and, taking into account the subsurface
and substrata and the proposed drainage plan, that the site is adequate
to assure the stability of the proposed wireless telecommunications
tower on the proposed site.
(23)
Propagation studies of the proposed site and all adjoining proposed
or in-service or existing sites.
(24)
The applicant shall disclose, in writing, any agreement in existence
prior to submission of the application that would limit or preclude
the ability of the applicant to share any new wireless telecommunications
facility that it constructs.
H.
In the case of a new wireless telecommunications facility, the applicant
shall be required to submit a report demonstrating its efforts to
secure shared use of existing wireless telecommunications facilities.
Copies of written requests and responses for shared use shall be provided
to the Planning Board.
I.
Certification that the wireless telecommunications facility, accessory
facilities and structures, and attachments are designed and constructed
(as built) to meet all county, state and federal structural requirements
for loads, including wind and ice loads.
J.
After construction certification that the wireless telecommunications
facility and related facilities are grounded and bonded so as to protect
persons and property and installed with appropriate surge protectors.
K.
A visual impact assessment, which shall, at the Planning Board's
request, include:
(1)
A "zone of visibility" map, which shall be provided in order
to determine locations where the facility may be seen.
(2)
Computer-generated pictorial representations of "before" and
"after" views from key viewpoints to be determined by the Planning
Board, including, but not limited to, state highways and other major
roads, state and local parks, other public lands, historic districts,
preserves and historic sites normally open to the public, and from
any other location where the site is visible to a large number of
visitors or travelers. The Planning Board will provide guidance concerning
the appropriate key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the facility base, guy
wires and accessory structures from abutting and adjacent properties
and streets.
L.
The applicant shall, in a manner approved by the Planning Board,
demonstrate and provide, in writing and/or by drawing, how it shall
effectively screen from view its proposed wireless telecommunications
facility base and all accessory facilities and structures, subject
to approval by the Planning Board.
M.
All utilities serving any wireless telecommunications facility site
shall be installed underground and in compliance with all laws, rules
and regulations of the City, including, specifically, but not limited
to, the National Electrical Safety Code and the National Electrical
Code where appropriate. The Planning Board may waive or vary the requirements
of underground installation of utilities whenever, in the opinion
of the Planning Board, such waiver or variance shall not be detrimental
to the health, safety, general welfare or environment, including the
visual and scenic characteristics of the area.
N.
All applicants for wireless telecommunications facilities and accessory
facilities and structures shall demonstrate that the facility be sited
so as to have the least possible adverse visual effect on the environment
and its character and on the residences in the area of the wireless
telecommunications facility site.
O.
Both the wireless telecommunications facility and any and all accessory
or associated facilities and structures shall maximize the use of
building materials, colors and textures designed to blend with the
structure to which it may be affixed and with the natural surroundings.
P.
An access road and parking to assure adequate emergency and service
access shall be provided, should such be deemed necessary by the Planning
Board. Maximum use of existing roads, whether public or private, shall
be made to the extent practicable. Road construction shall at all
times minimize ground disturbance and vegetation-cutting. Road grades
shall closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion potential.
Q.
A person who holds a conditional use permit for a wireless telecommunications
facility shall construct, operate, maintain, repair, modify or restore
the permitted wireless telecommunications facility in strict compliance
with all current technical, safety and safety-related codes and regulations
adopted by the City, county, state or United States, including, but
not limited to, the most recent editions of the National Electrical
Safety Code and the National Electrical Code (or substitute codes),
as well as accepted and responsibly workmanlike industry practices
and recommended practices of the National Association of Tower Erectors.
The codes referred to are codes that include, but are not limited
to, construction, building, electrical, fire, safety, health and land
use codes. In the event of a conflict between or among any of the
preceding, the more stringent shall apply.
R.
A holder of a conditional use permit granted under this article shall
obtain, at its own expense, all permits and licenses required by applicable
law, rule or regulation and must maintain the same, in full force
and effect, for as long as required by the City or other governmental
entity or agency having jurisdiction over the applicant.
S.
If the applicant is proposing the construction of a freestanding
tower, the applicant shall examine the feasibility of designing a
tower to accommodate future demand for at least two additional commercial
applications, e.g., future co-locations. The wireless telecommunications
facility shall be structurally designed to accommodate at least two
additional antenna arrays equal to those of the applicant and located
as close to the applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the wireless
telecommunications facility is not technologically feasible or is
commercially impracticable and creates an unnecessary and unreasonable
burden, based upon:
(1)
The number of foreseeable FCC licenses available for the area.
(2)
The kind of wireless telecommunications facility site and structure
proposed.
(3)
The number of existing and potential licenses without wireless
telecommunications facility spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
T.
Unless waived by the Planning Board, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues which will help to expedite the review and permitting process.
Where the application is for the shared use of an existing telecommunications
tower or other high structure, the applicant can seek to waive any
application requirements that may not be applicable. At the preapplication
meeting, the waiver requests, if appropriate, will be decided by the
City. Costs of the City's attorneys, engineers, planners and other
consultants to prepare for and attend the preapplication meeting will
be borne by the applicant.
U.
The holder of a conditional use permit shall notify the Planning
Board of any intended modification of a wireless telecommunications
facility and shall apply to the Planning Board to modify, relocate
or rebuild a wireless telecommunications facility.
A.
Location priorities.
(1)
Notwithstanding any other provision of the Zoning Code or any
other local law, wireless telecommunications facilities may be, subject
to the provisions of this article, located in any zoning district.
Applicants for wireless telecommunications facilities shall locate,
site and erect said wireless telecommunications facilities, including
towers or other tall structures, in accordance with the following
priorities, No. 1 being the highest priority and No. 7 being the lowest
priority:
|
Priority
Ranking
|
Location
| |
|---|---|---|
|
1
|
Co-location on a site with existing telecommunications towers
or structures containing existing telecommunications facilities in
nonresidential districts and on nonresidential buildings
| |
|
2
|
Existing nonresidential tall structures
| |
|
3
|
Industrial or commercial areas
| |
|
4
|
Other nonresidential areas
| |
|
5
|
Co-location on a site with existing telecommunications towers
or structures containing existing telecommunications facilities in
residential districts
| |
|
6
|
Existing residential structures over five stories in height
| |
|
7
|
On other property in the City
|
(2)
If the proposed property site is not the highest priority listed
above, then a detailed explanation must be provided as to why a site
of a higher priority was not selected. The person seeking such an
exception must satisfactorily demonstrate the reason or reasons why
such a permit should be granted for the proposed site and the hardship
that would be incurred by the applicant if the permit were not granted
for the proposed site.
(3)
An applicant may not bypass sites of higher priority by stating
that the site presented is the only site leased or selected. An application
shall address co-location as an option, and if such option is not
proposed, the applicant must explain why co-location is commercially
or otherwise impractical. Agreements between providers limiting or
prohibiting co-location shall not be a valid basis for any claim of
commercial impracticability or hardship.
(4)
Notwithstanding the above, the Planning Board may approve any
site located within an area in the above list of priorities, provided
that the Planning Board finds that the proposed site is in the best
interest of the health, safety and welfare of the City and its inhabitants.
B.
The applicant shall submit a written report demonstrating the applicant's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If the site selected
is not the highest priority, then a detailed written explanation as
to why sites of a higher priority were not selected shall be included
with the application.
C.
The applicant shall, in writing, identify and disclose the number
and locations of any additional sites that the applicant has, is or
will be considering, reviewing or planning for wireless telecommunications
facilities in the City, and all municipalities adjoining the City,
for a two-year period following the date of the application.
D.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Planning Board
may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements.
(2)
Conflict with traffic needs or traffic laws, or definitive plans
for changes in traffic flow or traffic laws.
(3)
Conflict with the historic nature of a neighborhood or historical
district.
(4)
The location of a wireless telecommunications facility will
be in such proximity to residences or other noncommercial uses so
as to create an unacceptable impact upon any adjoining property by
virtue of visual or aesthetic impacts and/or by virtue of the impact
of the placement of such a facility upon adjoining property values.
(5)
The placement and location of a wireless telecommunications
facility which would create an unacceptable risk, or the probability
of such, to residents, the public, employees and agents of the City,
or employees of the service provider or other service providers.
(6)
Placement of a wireless telecommunications facility, which,
by virtue of its location, would be in conflict with the purpose and
intent of the Zoning Code or Master Plan of the City of Trenton.
A.
Location of antennas on preexisting wireless telecommunications facilities
shall be considered and preferred. Shared use of existing telecommunications
towers or other existing structures shall be preferred by the City,
as opposed to the proposed construction of new telecommunications
towers or facilities. Where such shared use is unavailable, the applicant
shall submit a comprehensive report which lists an inventory of existing
wireless telecommunications facilities and other appropriate structures
which could be used to support antennas within four miles of any proposed
new wireless telecommunications facility site, unless the applicant
can show that some other distance is more reasonable, and outlining
opportunities for shared use of existing facilities and the use of
other preexisting structures as a preferred alternative to new construction.
B.
An applicant intending to share use of an existing telecommunications
tower or other tall structure shall be required to document the intent
of the existing owner to share use.
C.
In the event that an application to share the use of an existing
freestanding telecommunications tower does not increase the height
of the freestanding telecommunications tower, the Planning Board may
waive such requirements of the application required by this article
as may be unnecessary to the review of the application.
D.
Such shared use shall consist only of the minimum antenna array technologically
required to provide service within the City unless it is demonstrated
that a more extensive antenna array is necessary to fill a service
gap which cannot be filled without erecting additional freestanding
towers or telecommunications structures within the City. In no event
shall an antenna be installed which does not principally provide service
in a manner which fills an existing gap in service within the City.
A.
The applicant must submit documentation demonstrating that the total
height of any wireless telecommunications facility and/or antenna
is necessary to provide service within the City or to otherwise fill
a service gap which cannot be filled in any other reasonable fashion.
B.
Wireless telecommunications facilities shall be no higher than the
minimum height necessary. Unless waived by the Planning Board upon
good cause shown, the maximum height shall be 100 feet, based on three
co-located antenna arrays and ambient tree height of 70 feet.
C.
The maximum height of any wireless telecommunications facility and
attached antennas constructed after the effective date of this article
shall not exceed that which shall permit operation without artificial
lighting of any kind in accordance with municipal, county, state and/or
federal laws and/or regulations.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law.
B.
Telecommunications towers and facilities shall be of a galvanized
finish or painted with a rust-preventive paint of an appropriate color
to harmonize with the surroundings, as approved by the Planning Board,
and shall be maintained in accordance with the requirements of this
article.
C.
If lighting is required, the applicant shall provide a detailed plan
for sufficient lighting of as unobtrusive and inoffensive an effect
as is permissible under state and federal regulations, and an artist's
rendering or other visual representation showing the effect of light
emanating from the site on neighboring habitable structures within
1,500 feet of all property lines of the parcel on which the wireless
telecommunications facility is located.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner which prevents
unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures, including guy
wires, shall be made inaccessible to individuals and constructed or
shielded in such a manner that they cannot be climbed or run into.
B.
Transmitters and telecommunications control points must be installed
such that they are readily accessible only to persons authorized to
operate or service them.
Wireless telecommunications facilities shall contain a sign
no larger than four square feet to provide adequate notification to
persons in the immediate area of the presence of an antenna that has
transmission capabilities. The sign shall contain the name(s) of the
owner(s) and operator(s) of the antenna(s) as well as emergency telephone
number(s). The sign shall be located so as to be visible from the
access point of the site. No other signage, including advertising,
shall be permitted on any wireless telecommunications facilities,
antennas, antenna supporting structures or antenna towers, unless
required by law.
A.
All proposed telecommunications towers and associated equipment shall
be set back from abutting parcels, recorded rights-of-way and road
and street lines a distance sufficient to substantially contain on
site all icefall or debris from a tower or tower failure and to preserve
light, air and privacy of any adjoining properties.
B.
Wireless telecommunications facilities shall be located with a minimum
setback from any property line a distance equal to the height of the
facility, plus 10 feet, or the existing setback requirement of the
underlying zoning district, whichever is greater. Further, any accessory
structure shall be located so as to comply with the minimum setback
requirements for the property on which it is situated.
C.
Notwithstanding anything contained herein to the contrary, if a wireless
telecommunications facility is placed on an existing building, the
Planning Board may vary the setbacks, provided that the Planning Board
requires that the wireless telecommunications facility be set back
to the maximum extent permitted under the circumstances.
A.
The Planning Board may hire any consultant and/or expert necessary
to assist in review and evaluation of the application and any requests
for recertification.
B.
An applicant shall deposit with the City funds sufficient to reimburse
the City for all reasonable costs of consultant and expert evaluation
and consultation to the Planning Board in connection with the review
of any application. The initial deposit shall be $7,500 for a facility
application and $5,000 in the case of co-location. These funds shall
accompany the filing of an application, and the City will maintain
a separate escrow account for all such funds. The City's consultants/experts
shall bill or invoice the City no less frequently than monthly for
its services in reviewing the application and performing its duties.
If at any time during the review process the balance of this account
falls below $2,500, additional funds must be submitted to the City
to bring the balance of the account to $7,500, or in the case of co-location,
$5,000, or upon request from the applicant, a lesser amount to be
set by the Planning Board, before any further action or consideration
is taken on the application. In the event that the amount held in
escrow by the City is more than the amount of the actual billing or
invoicing, the difference shall be promptly refunded to the applicant.
C.
The total amount of the funds set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Planning Board or its consultant/expert to complete the necessary review and analysis. Additional funds, as required, shall be paid by the applicant. The initial amount of the escrow deposit shall be established at a preapplication meeting with the City.
A.
No person, corporation or other entity shall be permitted to site,
place, build, construct or modify, or prepare any site for the placement
or use of, a wireless telecommunications facility as of the effective
date of this article without having first obtained a conditional use
permit for a wireless telecommunications facility. Notwithstanding
anything to the contrary in this section, no conditional use permit
shall be required for those exceptions noted in the definition of
"wireless telecommunications facility," such as those used exclusively
for fire, police and other dispatch telecommunications or exclusively
for private radio and television reception and private citizens bands,
amateur radio and other similar telecommunications.
B.
After the date of adoption of this article all construction, including
routine maintenance on an existing wireless telecommunications facility,
shall comply with the requirements of this article.
C.
All wireless telecommunications facilities existing on or before
the effective date of this article shall be allowed to continue as
they presently exist; provided, however, that any modification to
existing facilities must comply with this article.
A.
The Planning Board will undertake a review of an application pursuant
to this article in a timely fashion and shall act within a reasonable
period of time given the relative complexity of the application and
the circumstances, with due regard for the public's interest and need
to be involved and the applicant's desire for a timely resolution.
B.
Except for necessary building permits, no additional permits or approvals
from the City, other than the conditional use permit granted under
this article, shall be required for telecommunications facilities
and telecommunications structures covered by this article.
C.
After the public hearing and after formally considering the application,
the Planning Board may approve and issue, approve with conditions,
or deny a conditional use permit. Its decision shall be in writing
and shall be based on the record. The burden of proof for the grant
of the permit shall always be upon the applicant.
D.
If the Planning Board approves the conditional use permit for a wireless
telecommunications facility, then the applicant shall be notified
of such approval, in writing, within 10 calendar days of the Board's
action, and the conditional use permit shall be issued within 30 days
after such approval.
E.
If the Planning Board denies the conditional use permit for a wireless
telecommunications facility, then the applicant shall be notified
of such denial in writing within 10 calendar days of the Board's action.
F.
The decision on the application shall also be filed in the office
of the City Clerk within 10 days after it is rendered.
G.
Upon receipt of the conditional use permit, the applicant shall thereafter
apply for and obtain a building permit from the Building Department.
Any person aggrieved by the granting or denial of an application
for a wireless telecommunications facility may take an appeal therefrom
to the Supreme Court of the State of New Jersey within 30 days from
the date of filing of the decision of the Planning Board on the application.
A.
At least six months prior to the fifth anniversary of the effective
date of the conditional use permit and every five years thereafter,
the holder of a conditional use permit for such facility shall submit
a written request for recertification. In the written request for
recertification, the holder of such conditional use permit shall note
the following:
(1)
The name of the holder of the conditional use permit for the
wireless telecommunications facility.
(2)
If applicable, the number or title of the conditional use permit.
(3)
The date of the original granting of the conditional use permit.
(4)
Whether the wireless telecommunications facility has been moved,
relocated, rebuilt, repaired or otherwise modified since the issuance
of the conditional use permit.
(5)
If the wireless telecommunications facility has been moved,
relocated, rebuilt, repaired or otherwise modified; whether the Planning
Board approved such action; the terms and conditions of such approval;
and a certification that the holder of the conditional use permit
is in compliance with all terms and conditions of the approval.
(6)
Any requests for waivers or relief of any kind whatsoever from
the requirements of this article and any requirements for a conditional
use permit.
(7)
That the wireless telecommunications facility is in compliance
with the conditional use permit and in compliance with all applicable
codes, laws, rules and regulations.
B.
If, after such review, the Planning Board determines that the permitted
wireless telecommunications facility is in compliance with the conditional
use permit and all applicable codes, laws, rules and regulations,
then the Board shall issue a recertification conditional use permit
for the wireless telecommunications facility, which may include any
new provisions or conditions that are mutually agreed upon or required
by codes, laws, rules or regulations.
C.
If the Planning Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the conditional use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facility shall receive an extension of the conditional use permit, for up to six months, in order for the Board to complete its review.
D.
If the holder of a conditional use permit for a wireless telecommunications facility does not submit a request for recertification of such conditional use permit within the time frame noted in Subsection A of this section, or if the Planning Board finds that the wireless telecommunications facility has been moved, relocated, rebuilt or otherwise modified without approval of such having been granted by the Planning Board under this article, then such conditional use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the conditional use permit, or subsequent fifth anniversaries, unless the holder of the conditional use permit adequately demonstrates to the Planning Board that extenuating circumstances prevented a timely recertification request. If the Planning Board agrees that there were legitimate extenuating circumstances, then the holder of the conditional use permit may submit a late recertification request.
The extent and parameters of a conditional use permit for a
wireless telecommunications facility shall be as follows:
A.
Such conditional use permit shall be nonexclusive.
B.
Such conditional use permit shall not be assignable or transferable
without the express written consent of the Planning Board, and such
consent shall not be unreasonably withheld.
C.
Such conditional use permit may be revoked, canceled or terminated
for a violation of the conditions and provisions of the conditional
use permit for a wireless telecommunications facility or for a material
violation of this article.
The applicant and the owner of record of any property on which
there is a proposal to site a wireless telecommunications facility
shall be jointly required to execute and file with the City a bond,
or other form of security acceptable to the City, in an amount deemed
sufficient by the Planning Board to assure the faithful performance
of the terms and conditions of this article and the conditions of
any conditional use permit issued pursuant to this article. The full
amount of the bond or security shall remain in full force and effect
throughout the term of the conditional use permit and/or until the
wireless telecommunications facility is removed and any necessary
site restoration is completed. The failure to pay any annual premium
for the renewal of any such security shall be a violation of the provisions
of the conditional use permit and shall entitle the Planning Board
to revoke the conditional use permit after prior written notice to,
and an opportunity to be heard by, the holder of the permit.
A.
In order to verify that the holder of a conditional use permit for
a wireless telecommunications facility and any and all lessees, renters
and/or licensees of a wireless telecommunications facility place and
construct such facilities, including towers and antennas, in accordance
with all applicable technical, safety, fire, building and zoning codes,
laws, rules and regulations and other applicable requirements, the
City may inspect all facets of said permit holder's, renter's, lessee's
or licensee's placement, construction, modification and maintenance
of such facilities, including, but not limited to, towers, antennas
and buildings or other structures constructed or located on the permitted
site.
B.
The City shall pay for costs associated with such an inspection,
except for those circumstances occasioned by said holder's, lessee's
or licensee's refusal to provide necessary information or necessary
access to such facilities, including towers, antennas and appurtenant
or associated facilities, or refusal to otherwise cooperate with the
City with respect to an inspection, or if violations of this article
are found to exist, in which case the holder, lessee or licensee shall
reimburse the City for the cost of the inspection.
C.
Payment of such costs shall be made to the City within 30 days from
the date of the invoice or other demand for reimbursement. In the
event that the finding(s) of violation is/are appealed in accordance
with the procedures set forth in this article, said reimbursement
payment must still be paid to the City and the reimbursement shall
be placed in an escrow account established by the City specifically
for this purpose, pending the final decision on appeal. In the event
the appeal is successful, the funds held in escrow shall be returned
to the permit holder.
The holder of the conditional use permit shall, annually, cause
an engineer with at least five years of experience in the field to
certify to the City that nonionizing electromagnetic radiation (NIER)
levels at the site are within the threshold levels adopted by the
FCC. The certifying engineer need not be approved in advance by the
City but must submit evidence of experience along with the required
certification.
A.
A holder of a conditional use permit for a wireless telecommunications
facility shall secure, and at all times maintain, public liability
insurance, property damage insurance and umbrella insurance coverage
for the duration of the conditional use permit in the following amounts:
B.
The commercial general liability insurance policy shall specifically
include the City and its officials, employees and agents as additional
insureds.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the State of New
Jersey.
D.
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the City with at least 30 days' written
notice in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall be delivered
to the City at least 15 days before the expiration of the insurance
which such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facility
is initiated, the holder of the conditional use permit shall deliver
to the City a copy of each of the policies or certificates representing
the insurance in the required amounts.
Any conditional use permit issued pursuant to this article shall
contain a provision with respect to indemnification. Such provision
shall require the holder of the conditional use permit, to the extent
permitted by the law, to at all times defend, indemnify, protect,
save, hold harmless and exempt the City, officials of the City and
its officers, agents, servants and employees from any and all penalties,
damages or charges arising out of any and all claims, suits, demands,
causes of action or awards of damage, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the construction, erection, modification,
location, product performance, operation, maintenance, repair, installation,
replacement, removal or restoration of a wireless telecommunications
facility within the City. With respect to the penalties, damages or
charges referenced herein, reasonable fees of attorneys, consultants
and expert witnesses are included in those costs that are recoverable
by the City.
A.
Civil sanctions. Any person who violates any of the provisions of
this article shall be liable for a civil penalty of not more than
$3,000 for every such violation. Each consecutive day of violation
will be considered a separate offense. Such civil penalty may be released
or compromised by the City. In addition, the City shall have power,
following a hearing, to direct the violator to comply with the provisions
of this article.
B.
Criminal sanctions. Any person, firm or corporation who willfully
violates any of the provisions of this article or permits promulgated
thereunder, excluding provisions set forth in the rules and regulations
promulgated thereunder, upon conviction thereof of the first offense
shall be guilty of a violation punishable by a fine of not less than
$500 and not more than $1,000 and, for a second offense and each subsequent
offense, shall be guilty of a violation punishable by a fine of not
less than $1,000 nor more than $2,000, or a term of imprisonment of
not more than 15 days, or both. Each consecutive day of violation
will be considered a separate offense.
C.
Notwithstanding anything in this article, the holder of the conditional
use permit for a wireless telecommunications facility may not use
the payment of fines, liquidated damages or other penalties, to evade
or avoid compliance with this article or any section of this article.
An attempt to do so shall subject the holder of the conditional use
permit to termination and revocation of the conditional use permit.
D.
The provisions for civil and criminal penalties contained herein
shall not be exclusive, and the City may seek such other relief as
may be available, including injunctive relief to prevent the threatened
or continued violation of this article.
A.
If a wireless telecommunications facility is repaired, rebuilt, placed,
moved, relocated, modified or maintained in a way that is inconsistent
or not in compliance with the provisions of this article or of the
conditional use permit, then the Building Department shall notify
the holder of the conditional use permit, in writing, of such violation.
Such notice shall specify the nature of the violation or noncompliance
and that the violations must be corrected within seven days of the
date of the postmark of the notice, or of the date of personal service
of the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this article,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Building
Department may, at its sole discretion, order the violation remedied
within 24 hours.
B.
If, within the period set forth in Subsection A above, the wireless telecommunications facility is not brought into compliance with the provisions of this article or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facility into compliance, then the Planning Board may revoke such special use permit for a wireless telecommunications facility and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Planning Board may determine
that the health, safety and welfare interests of the City warrant
and require the removal of a wireless telecommunications facility:
(1)
A wireless telecommunications facility with a permit has not
been used as a wireless telecommunications facility for a period exceeding
90 consecutive days or a total of 180 days in any three-hundred-sixty-five-day
period, except for periods caused by force or acts of God.
(2)
A permitted wireless telecommunications facility falls into
such a state of disrepair that it creates a health or safety hazard.
(3)
A wireless telecommunications facility has been located, constructed
or modified without first obtaining the required conditional use permit
or any other necessary authorization.
(4)
A wireless telecommunications facility, which does not meet
the current FCC standards, shall be removed within six months of the
implementation of such new standards, unless the facility is made
compliant.
B.
If the Planning Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the conditional use permit for the wireless telecommunications facility within 48 hours that said wireless telecommunications facility is to be removed. The Planning Board may approve an interim temporary use permit, such as to enable the sale of the wireless telecommunications facility.
C.
Upon a determination by the Planning Board that a wireless telecommunications
facility should be removed, the holder of the conditional use permit
or the owner of the site shall dismantle and remove such wireless
telecommunications facility and all associated structures and facilities
from the site and restore the site to as close to its original condition
as is possible, such restoration being limited only by physical or
commercial impracticability, within 90 days of receipt of written
notice from the Planning Board.
D.
If a wireless telecommunications facility is not removed or substantial
progress has not been made to remove the wireless telecommunications
facility within 90 days after the permit holder or owner of the site
has received notice, then the City may remove the wireless telecommunications
facility at the sole expense of the owner and/or permit holder.
E.
If the City removes or causes to be removed a wireless telecommunications
facility and the owner of the wireless telecommunications facility
does not claim the property and remove the facility from the site
to a lawful location within 10 days, then the City may take steps
to declare the facility abandoned and sell it and its components.
F.
Notwithstanding anything in this section to the contrary, the Planning
Board may approve a temporary permit for the wireless telecommunications
facility for no more than 90 days, during which time a suitable plan
for removal, conversion or relocation of the affected wireless telecommunications
facility shall be developed by the holder of the permit, subject to
the approval of the Planning Board, and an agreement to such plan
shall be executed by the holder of the permit and the City. If such
a plan is not developed, approved and executed within the ninety-day
time period, then the City may take possession of and dispose of the
affected wireless telecommunications facility in the manner provided
in this section.
A.
Any applicant can request a waiver of application requirements that
are inapplicable to its permit application. Such request shall be
in writing. Requests should be discussed at the preapplication meeting.
The applicant shall have the burden of supporting such requests. Determinations
as to applicability of application requirements shall be made by the
Planning Board.
B.
In determining permit conditions, the Planning Board can waive inapplicable
permit requirements, consistent with the policy goals and priorities
of this article. The applicant shall have the burden of supporting
such requests. Determinations as to applicability of permit condition
requirements shall be made by the Planning Board.
A.
To the extent that the holder of a conditional use permit for a wireless
telecommunications facility has not received relief or is not otherwise
exempt from appropriate state and/or federal agency rules or regulations,
then the holder of such a conditional use permit shall adhere to and
comply with all applicable rules, regulations, standards arid provisions
of any state or federal agency, including but not limited to the FAA
and the FCC. Specifically included in this requirement are any rules
and regulations regarding height, lighting, security, electrical and
RF emission standards.
B.
To the extent that applicable rules, regulations, standards and provisions
of any state or federal agency, including but not limited to the FAA
and the FCC, and specifically including any rules and regulations
regarding height, lighting and security, are changed and/or are modified
during the duration of a conditional use permit for a wireless telecommunications
facility, then the holder of such a conditional use permit shall conform
the wireless telecommunications facility to the applicable changed
and/or modified rule, regulation, standard or provision within a maximum
of 24 months of the effective date of the applicable changed and/or
modified rule, regulation, standard or provision, or sooner as may
be required by such rule, regulation, standard or provision.
Where this article differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the county, state or federal government, the more restrictive or
protective of the City and the public shall apply.
If any word, phrase, sentence, part, section, subsection or
other portion of this article or any application thereof to any person
or circumstance is declared void, unconstitutional or invalid for
any reason, then such word, phrase, sentence, part, section, subsection
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this article, and all applications
thereof, not having been declared void, unconstitutional or invalid,
shall remain in full force and effect.
This article is enacted by local law pursuant to Municipal Land
Use Law.[1] This article shall supersede the provisions of City law
or other statute to the extent that it is inconsistent with the same
and to the extent permitted by the New Jersey State Constitution,
Municipal Land Use Law or any other applicable statute.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
