[Ord. No. 2004:09 § 1]
The Federal Communication Act of 1934 as amended by the Telecommunications
Act of 1996, grants the Federal Communications Commission (FCC) exclusive
jurisdiction over:
a.
The regulation of the environmental effects of radio frequency emissions
from Telecommunication facilities; and
b.
The regulation of radio signal interference among users of the RF
spectrum.
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The Borough's regulation of towers, antennas and telecommunications
facilities in the Borough will not have the effect of prohibiting
any person from providing wireless telecommunications services in
violation of the Telecommunications Act of 1996.
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[Ord. No. 2004:09 § 2]
The general purpose of this chapter is to regulate the placement,
construction, and modification of towers, antenna and telecommunication
facilities in order to protect the health, safety and welfare of the
public, while at the same time not unreasonably interfering with the
development of the competitive wireless telecommunications marketplace
in the Borough.
Specifically, the purposes of this chapter are to regulate the
location of towers, antennas and telecommunication facilities in the
Borough; to protect residential areas and land uses from potential
adverse impacts of towers, antennas and telecommunication facilities;
to minimize adverse visual impact of towers, antennas and telecommunication
facilities through careful design, siting, landscaping and innovative
camouflaging techniques; to promote and encourage shared use/co-location
of towers and antennas as a primary option rather than constructions
of additional single-use towers; to promote and encourage utilization
of technology designs that will either eliminate or reduce the need
for erection of new towers, antenna structures and/or telecommunication
facilities; to avoid potential damage to property caused by towers,
antennas and telecommunication structures by ensuring such structures
are soundly and carefully designed, constructed, modified, maintained,
and removed when no longer used or determined to be structurally unsound;
to ensure that towers, antennas, and telecommunication facilities
are compatible with surrounding land uses; protect the Borough's
built and natural environment by promoting compatible design standards
for towers, antennas and telecommunication facilities
[Ord. No. 2004:09 § 3]
As used in this chapter, the following terms shall have the
meanings set forth below:
Shall mean man-made trees, clock towers, bell steeples, light
poles and similar alternative design mounting structures that camouflage
or conceal the presence of antennas or towers.
Shall mean any exterior transmitting or receiving device
mounted on a tower, building or structure and used in communications
that radiate or capture electromagnetic waves, digital signals, analog
signals, radio frequencies (excluding radar signals), wireless telecommunications
signals or other communication signals.
Shall mean placing more than one exterior transmitting or
receiving device on one physical structure at one location.
Shall mean the lines that connect a provider's towers/cells
sites to one or more cellular telephone switching offices, and/or
long distance providers, or the public switched telephone network.
Shall mean Federal Aviation Administration.
Shall mean Federal Communications Commission.
Shall mean, when referring to a tower or other structure,
the distance measured from the lowest finished grade of the parcel
to the highest point on the tower or other structure, including the
base pad and any antenna.
Shall mean any tower or antenna for which a building permit
or conditional use permit has been properly issued prior to the effective
date of this chapter,[1] including permitted towers or antennas that have not yet
been constructed so long as such approval is current and not expired.
Shall mean any cables, wires, lines, wave guides, antennas,
and any other equipment or facilities associated with the transmission
or reception of communications which a person seeks to locate or has
installed upon or near a tower or antennas and/or its support structure.
However, telecommunications shall not include any earth station antenna
two meters in diameter or less which is located in an area zoned industrial
or commercial or any satellite earth station antenna one meter or
less in diameter regardless of zoning category.
Shall mean any structure that is designed and constructed
primarily for the purpose of supporting one or more antennas for telephone,
radio and similar communication purposes, including self-supporting
lattice towers, guyed towers, or monopole towers. The term includes
radio and television transmission towers, microwave towers, common
carrier towers, cellular phone towers, alternative tower structures,
and the like. The term includes the structure and the support thereto.
[1]
Editor's Note: Ordinance No. 2004:09, codified herein,
was adopted May 24, 2004.
[Ord. No. 2004:09 § 4]
a.
New Towers and Antennas. All new towers or antennas in the Borough
of New Milford shall be subject to these regulations, except for:
1.
Amateur Radio Station Operators/Receive Only Antennas. These are
antennas and towers privately owned and used exclusively to receive
for private, noncommercial purposes. Said towers and antennas may
be regulated elsewhere.
2.
Preexisting Towers and Antennas. These towers and antennas are not
subject to this chapter, except for Sections 19A-4f and g hereof.
If any enlargement or modification of the structure is planned, then
this chapter shall apply.
3.
AM Array. An AM array, consisting of one or more tower units and
supporting ground system which functions as on AM broadcasting antennas,
shall be considered one tower. Measurements for setbacks and separation
distances shall be measured from the outer perimeter of the towers
included in the array. Additional tower units may be added within
the perimeter of the AM array by right.
[Ord. No. 2004:09 § 5]
a.
Principal or Accessory Use. Antennas and towers may be considered
either principal or accessory uses. A different existing use of an
existing structure on the same lot shall not preclude the installation
of an antenna or tower on such lot. Notwithstanding the foregoing,
any proposed accessory use on a property shall require a site plan
application before the Planning Board.
b.
Lot Size. For purposes of determining whether the installation of
a tower or antenna complies with zone development regulations, including,
but not limited to: setback requirements, lot coverage requirements,
and other such requirements, the dimensions of the entire lot shall
control, even though the antennas or towers may be located on leased
parcels with such lot.
c.
Inventory of Existing Sites. Each applicant for an antenna and/or
tower shall provide to the Zoning Officer: (i) an inventory of its
existing towers, and antennas; (ii) all sites approved for towers
and antennas that are in the jurisdiction of the Borough of New Milford
as well as such sites within one mile of the border thereof. This
section shall be read to be inclusive of any area which may be under
the jurisdiction of any other entity or body.
d.
Aesthetics. Towers and antennas shall meet the following requirements:
1.
Applicants must provide camouflaging as defined by the term "alternative
tower structure" or provide documentation as to why camouflage is
not feasible.
2.
The tower shall either maintain a galvanized steel finish or, meet
the applicable standards of the F.A.A. If the tower is not to be camouflaged
by an alternative tower structure, the tower is to be painted a neutral
color so as to reduce visual obtrusiveness.
3.
Whether a tower is camouflaged or not, at a tower site, the design
of the buildings and related structures shall, to the extent possible,
use material, colors, textures, screening, and landscaping that will
blend them into the natural setting and surrounding buildings.
4.
If an antenna is installed on a structure other than a tower, the
antenna and supporting electrical and mechanical equipment must be
a neutral color that is identical to, or closely compatible with,
the color of the supporting structure so as to make the antenna and
related equipment as visually unobtrusive as possible.
e.
Lighting. Towers shall not be artificially lighted, unless required
by the FAA or other applicable authority. If lighting is required,
the lighting alternatives and design chosen must cause the least disturbance
to the surrounding views.
f.
State or Federal Requirements. All towers must meet or exceed current
standards and regulations of the FAA, the FCC, and any other agency
of the State or Federal government with the authority to regulate
towers and antennas. If such standards and regulations are changed,
then the owners of the towers and antennas governed by this chapter
shall bring such towers and antennas into compliance with such revised
standards within six months of the effective date of such standards
and regulations, unless a different compliance schedule is mandated
by the controlling State or Federal agency. Failure to bring towers
and antennas into compliance with such revised standards and regulations
shall constitute grounds for the removal of the tower or antennas
at the owner's expense.
g.
Building Codes and Safety Standards. To ensure the structural integrity
of towers and antennas, the owner of a tower shall ensure that it
is maintained in compliance with standards contained in applicable
State or local building codes and the applicable standards for towers
that are published by the Electronic Industries Association, as amended
from time to time. If, upon inspection, the Borough of New Milford
concludes that a tower fails to comply with such codes and standards
and constitutes a danger to persons and property, then upon notice
being provided to the owner of the tower, the owner shall have 30
days to bring such tower into compliance. Failure to comply within
said 30 days shall constitute grounds for the removal of the tower
or antenna at the owner's expense.
h.
Measurement. For purposes of measurement, tower setbacks and separation
distances shall be calculated and applied to facilities located in
the Borough of New Milford irrespective of municipal and county jurisdictional
boundaries.
i.
Nonessential Services. Towers and antennas shall be regulated and
permitted pursuant to this chapter and shall not be regulated or permitted
as essential services, public utilities, or private utilities.
j.
Franchises. Owners and operators of towers or antennas shall certify
that all franchises required by law for the construction and/or operation
of a wireless communication system in the Borough of New Milford have
been obtained and shall file a copy of all required franchises with
the Zoning Officer.
k.
Public Notice. For purposes of this chapter, any conditional use
request, variance request, or appeal of an administratively approved
use or conditional use shall require public notice to all abutting
property owners and all property owners of properties that are located
within the corresponding separation distances listed in Table 2,[1] in addition to any notice otherwise required by any Zoning
Ordinance.
l.
No signs shall be allowed on an antenna or tower.
m.
Buildings and Support Equipment. Buildings and support equipment
associated with antennas or towers shall comply with the requirements
of any and all applicable Federal, State, and municipal building codes.
n.
Multiple Antenna/Tower Plan. The Borough of New Milford requires
the users of the towers and antennas to submit application for approval
of multiple towers and/or antenna sites. No application for a single
use tower shall be approved without substantial proof that no co-location
was possible, and that building for future co-location is not feasible.
[Ord. No. 2004:09 § 6; Ord. No. 2008:10]
a.
General. The uses listed in this section are deemed to be permitted
uses and shall not require administrative approval or a conditional
use permit.
b.
Permitted Uses. The following uses are specifically permitted:
1.
Antennas or towers located on property owned, leased, or otherwise
controlled by the Borough of New Milford provided a license or lease
authorizing such antenna or tower has been approved by the Borough
of New Milford. However, the Borough may, as a condition of such lease
require site plan approval. The decision to extend such leases to
an applicant shall be vested solely with the municipality, and shall
not be governed by this chapter.
2.
Antennas or towers located in any industrial zone are specifically
subject to site plan approval.
[Ord. No. 2004:09 § 7]
a.
General. The following provision shall govern the issuance of administrative
approvals for towers and antennas.
1.
The Zoning Officer may administratively approve the uses listed in
this section.
2.
Each applicant for administrative approval shall apply to the Zoning
Officer providing the information set forth in this chapter and a
nonrefundable fee as established by resolution of the Governing Body
of the municipality to reimburse the Borough of New Milford for the
cost; of reviewing this application.
3.
The Zoning Officer shall review the application for administrative
approval and determine if the proposed use complies with other applicable
sections of this chapter.
4.
The Zoning Officer shall respond to each such application within
60 days after receiving it by either approving or denying the application.
5.
In connection with any such administrative approval, the Zoning Officer
may, in order to encourage shared use, administratively waive any
zoning district setback requirements in this chapter or separation
distances between towers in this chapter by up to 50%, but only for
applications co-locating on an already approved site.
6.
In connection with any such administrative approval, the Zoning Officer
may, in order to encourage the use of monopoles, administratively
allow the reconstruction of an existing tower to monopole construction.
b.
List of Administratively Approved Uses. The following uses may be
approved by the Zoning Officer after conducting an administrative
review:
1.
Locating antennas on existing structures or towers consistent with
the terms of subsections below:
(a)
Antennas on existing structures. Any antenna which is not attached
to a tower may be approved by the Zoning Officer as an accessory use
to any commercial, industrial, professional, institutional structure,
provided the antenna as measured from the lowest grade, does not extend
more than the maximum building height for the zone wherein the structure
is located, and complies with all applicable FAA, FCC regulations,
and building codes.
(b)
Antennae on existing towers. An antenna which is attached to
an existing tower may be approved by the Zoning Officer and, to minimize
adverse visual impacts associated with the proliferation and clustering
of towers, co-location of antennas by more than one carrier on existing
towers shall take precedence over the construction of new towers,
provided such co-location is accomplished in a manner consistent with
the following:
(1)
A tower modified or reconstructed to accommodate the co-location
of an additional antenna shall be of the same tower type as the existing
tower, unless the Zoning Officer allows reconstruction as a monopole.
(2)
[Ord. No. 2004:09 § 8]
a.
General. The following provisions shall govern the issuance of conditional
use permits for towers or antennas by the Planning Board:
1.
If the tower or antenna is not a permitted use under Section 19A-6 of this chapter or permitted to be approved administratively pursuant to Section 19A-7 of this chapter, then a conditional use permit shall be required for the construction of a tower of the placement of an antenna in all nonresidential zoning districts.
2.
Applications for conditional use permits under this section shall
be subject to the procedures and requirements of all other applicable
local ordinances except as modified in this section.
3.
In granting conditional use permit, the Planning Board may impose
conditions to the extent the Planning Board concludes such conditions
are necessary to minimize any adverse effect of the proposed tower
on adjoining property.
4.
Any information of an engineering nature that the applicant submits,
whether civil, mechanical, or electrical, shall be certified by a
licensed professional engineer.
5.
An applicant for a conditional use permit shall submit the information
described in this section and a nonrefundable fee established by the
Borough Engineer and Attorney to reimburse the Borough of New Milford
for the costs of reviewing the application.
b.
Towers.
1.
Information Required. In addition to any information required for
applications for conditional use permits pursuant to applicable zoning
ordinances, and other Borough ordinances, applicants for a conditional
use permit for a tower shall submit the following information:
(a)
A scaled site plan clearly indicating the location, type and
height of the proposed tower, on-site land uses and zoning, adjacent
land uses and zoning (including when adjacent to other municipalities),
master plan classification of the site and all properties with the
applicable separation distances set forth herein, adjacent roadways,
proposed means of access, setbacks from property lines, elevation
drawings of the proposed tower and any other structures, topography,
parking, and other information deemed by the Zoning Officer to be
necessary to assess compliance with this chapter.
(b)
Legal description of the parent tower and leased parcel (if
applicable).
(c)
The setback distances between the proposed tower and the nearest
residential unit, platted residentially zoned property, and unplatted
residentially zoned properties.
(d)
The separation distances from other towers described in the inventory of existing sites submitted pursuant to Section 19A-5 shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s), if known, as well as the owner/operator of the existing tower(s), as applicable.
(e)
A landscape plan showing specific landscape materials.
(f)
Method of fencing, and finished color and, if applicable, the
method of camouflage and illumination.
(h)
A notarized statement by the applicant as to whether construction
of the tower will accommodate co-location of additional antennas for
future users and if not, why it will not.
(i)
Identification of the entities providing the backhaul network
for the tower(s) described in the application and other cellular sites
owned or operated by the applicant in the municipality.
(j)
A description of the suitability of the use of existing towers,
other structures or alternative technology not requiring the use of
towers or structures to provide the services to be provided through
the use of the proposed new tower.
(k)
A description of the feasible location(s) of future towers or
antennas within the Borough of New Milford based upon existing physical,
engineering, technological or geographical limitations in the event
the proposed tower is erected.
2.
Factors Considered in Granting Conditional Use Permits for Towers.
In addition to any standards for consideration of conditional use
permit applications pursuant to any zoning ordinance, the Planning
Board shall consider the following factors in determining whether
to issue a conditional use permit, although the Planning Board may
waive or reduce the burden on the applicant of one or more of these
criteria if the Planning Board concludes that the goals of the chapter
are better served thereby:
(a)
Height of proposed tower;
(b)
Proximity of the tower to residential structures and residential
district boundaries and recreation areas;
(c)
Nature of uses on adjacent and nearby properties;
(d)
Surrounding topography;
(e)
Surrounding tree coverage and foliage;
(f)
Design of tower, with particular reference to design characteristic
that have the effect of reducing or eliminating visual obtrusiveness;
(g)
Proposed ingress and egress;
(h)
Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in Section 19A-8b3 of this chapter;
(i)
That the tower or antenna will be compatible with and not adversely
impact the character and integrity of surrounding properties.
3.
Availability of Suitable Existing Towers, Other Structures, or Alternative
Technology. No new tower shall be permitted unless the applicant demonstrates
to the reasonable satisfaction of the Planning Board that no existing
tower, structure or alternative technology that does not require the
use of towers or structures can accommodate the applicant's proposed
antenna. An applicant shall submit information requested by the Planning
Board related to the availability of suitable existing towers, other
structures or alternative technology. Evidence submitted to demonstrate
that no existing tower, structure or alternative technology can accommodate
the applicant's proposed antenna may consist of any of the following
(although nothing shall be construed to infer that meeting one, some,
or all of the following shall entitle the applicant to approval):
(a)
No existing towers or structures are located within the geographic
area which meet applicant's engineering needs;
(b)
Existing towers or structures are not of sufficient height to
meet applicant's engineering requirements;
(c)
Existing towers or structures do not have sufficient structural
strength to support applicant's proposed antenna and related
equipment;
(d)
The applicant's proposed antenna would cause electromagnetic
interference with the antenna on the existing towers or structures,
or the antenna on the existing towers or structures would cause interference
with the applicant's proposed antenna;
(e)
The fees, costs, or contractual provisions required by the owner
in order to share an existing tower or structure or to adapt an existing
tower or structure for sharing are unreasonable. Costs exceeding new
tower development by 30% are presumed unreasonable;
(f)
The applicant demonstrates that an alternative technology that
does not require the use of towers or structures, such as a cable
microcell network using multiple low-powered transmitters/receivers
attached to a wireless system, is unsuitable. Costs of alternative
technology that exceed tower or antenna development shall not be presumed
to render the technology unsuitable.
4.
Setbacks. The following setback requirements shall apply to all towers
for which a conditional permit is required; provided, however that
the Planning Board may reduce the standard setback requirements if
the goals of this chapter would be better served thereby:
(a)
Towers must be set back a distance equal to at least 75% of
the height of the tower from every adjoining lot line.
(b)
Guy wires and accessory buildings must satisfy the minimum zoning
district setback requirements.
(c)
No tower shall exist within required buffer areas, if adjacent
to residential zones and as prescribed under local ordinance.
5.
Separation. The following separation requirements shall apply to
all towers and antenna for which a conditional use permit is required;
provided, however, that the Planning Board may reduce the standard
separation requirements if the goals of this chapter would be better
served thereby.
(a)
Separation from off-site uses/designated areas.
(1)
Tower separation shall be measured from the base of the tower
to the lot line of the off-site uses and/or designated areas as specified
in Table 1, except as otherwise provided in Table 1.
(2)
Separation requirements for towers shall comply with the minimum
standards established in Table 1.
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Table 1
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Off-Site Uses/Designated Areas
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Separation Distance
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Residential, public parks, schools, or houses of worship, nursing
homes, hospitals, senior housing, or any similar use or area
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1000 feet or 400% height of tower, whichever is greater
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Vacant single-family residentially zoned land which is either
platted or has preliminary subdivision approval which is not expired
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1000 feet or 400% height of tower, whichever is greater
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Vacant unplatted residentially zoned lands including any unplatted
residential use properties without a valid preliminary subdivision
plan or valid developmental plan approval and any multi-family residentially
zoned land greater than a duplex
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1000 feet or 300% height of tower, whichever is greater
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Nonresidentially zoned lands or nonresidential uses
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None — only setbacks apply
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(b)
(1)
Separation distances between towers shall be applicable for
and measured between the proposed tower and preexisting towers. The
separation distances shall be measured by drawing or following a straight
line between the base of the existing tower and the proposed base,
pursuant to the site plan, of the proposed tower. The separation distances
(listed in linear feet) shall be as shown in Table 2.
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Table 2
Existing Towers
(Types)
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|---|---|---|---|---|
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Lattice
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Guyed
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Monopole 30+ feet in height
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Monopole Less than 30 feet in height
| |
|
Lattice
|
6,000
|
6,000
|
3,000
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2,500
|
|
Guyed
|
6,000
|
6,000
|
3,000
|
2,500
|
|
Monopole 30+ feet in height
|
3,000
|
3,000
|
3,000
|
2,500
|
|
Monopole less than 30 feet in height
|
2,500
|
2,500
|
2,500
|
2,500
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6.
Security Fencing. Towers shall be enclosed by security fencing not
less than six (6') feet in height and shall also be equipped
with an appropriate anti-climbing device.
7.
Landscaping. The following requirements shall govern the landscaping
surrounding towers for which a conditional use permit is required.
(a)
Tower facilities shall be landscaped with a buffer of plant
materials that effectively screens the view of the tower compound
from property used for residences, planned residences or other appropriated
use or area in which the Planning Board deems a buffer would be required
to further the goals of this chapter. The minimum buffer shall consist
of a five (5') foot wide buffer outside the perimeter of the
compound.
(b)
In locations where the visual impact of the tower would be minimal,
the landscaping requirement may be reduced. However, should the location
of the area so change as to where the visual impact of the tower need
be reduced; the Planning Board may so require landscaping consistent
with this chapter.
(c)
Existing mature tree growth and natural land forms on the site
shall be preserved to the maximum extent possible.
[Ord. No. 2004:09 § 9]
No tower, alternative tower or antenna, shall be constructed
in a residential zone. No tower, alternative tower or antenna shall
be located within one thousand (1000') feet of a church, school,
or recreational area.
[Ord. No. 2004:09 § 10]
a.
Antennas Mounted on Structures and Rooftops. The equipment cabinet
or structure used in association with antennas shall comply with the
following:
1.
The cabinet or structure shall not contain more than 100 square feet
of gross floor area or be more than ten (10') feet in height.
In addition, for building and structures which are less than forty
(40') feet in height, the related unmanned equipment structure,
shall be located on the ground and shall not be located on the roof
of the structure.
2.
If the equipment structure is located on the roof of a building,
the area of the equipment structure and other equipment and structure
shall not occupy more than 10% of the roof area.
3.
Equipment storage buildings or cabinets shall comply with all applicable
building codes.
b.
Antennas Mounted on Utility Poles. Light Poles, or Towers. The equipment
cabinets or structure used in association with antennas shall be located
in accordance with the following:
1.
In a front or side yard provided the cabinet or structure is not
greater than six (6') feet in height or 100 square feet of gross
floor area and the cabinet/structure shall be located a minimum of
seventy-five (75') feet from all lot lines. The cabinet/structure
shall be screened by an evergreen hedge of which its ultimate, planted
height, shall screen the cabinet/structure completely from view.
2.
In a rear yard, provided the cabinet or structure is not greater
than eight (8') feet in height or 120 square feet in gross floor
area. The cabinet/structure shall be screened by an evergreen hedge
of which its ultimate, planted height, shall screen the cabinet/structure
completely from view.
3.
In all other instances, structures or cabinets shall be screened
from view of all residential properties which abut or are directly
across the street from the structure or cabinet by a solid decorative
fence or an evergreen hedge, of which the ultimate height of either
shall screen the cabinet/structure completely from view.
4.
Emergency generators shall be located below grade and suitably soundproofed
so that noise volumes measured at all property lines do not exceed
ambient levels. A nighttime restriction of 50 decibels measured at
all lot lines shall be imposed.
[Ord. No. 2004:09 § 11]
Any tower or antenna that is not operated for a continuous period
of six months shall be considered abandoned, and the owner of such
antenna or tower shall remove same within 90 days of receipt of notice
from the Borough of New Milford notifying the owner of such abandonment.
Failures to remove the tower or antenna within said 90 day period
shall be grounds to remove the tower or antenna at the owner's
expense. If there are two or more users of a single tower, then this
provision shall not become effective until all users cease using the
tower. To secure the owner and/or operator of its obligations under
this section, the Borough may condition the issuance of any permit
for a tower or antenna on the posting of an appropriate performance
bond or suitable guarantee in a face amount of not less than 120%
of the cost (as determined by the Borough Engineer) of such removal,
grading and restoration to a state required under all applicable Borough
ordinances, including, but not limited to the Borough Property Maintenance
Code.
[Ord. No. 2004:09 § 12]
a.
Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas. Nonconforming towers or antennas that are damaged or destroyed may not be rebuilt without having to first obtain administrative approval or a conditional use permit and without having to meet the separation requirements specified in this chapter. The type, height, and location of the tower on-site shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified on Section 19A-11 hereof.
