A.
The Federal Communications Act of 1934 as amended
by the Telecommunications Act of 1996 (hereinafter the "Act") grants
the Federal Communications Commission exclusive jurisdiction over:
B.
The city's regulation of towers and telecommunication
facilities within Millville will not have the effect of prohibiting
any person from providing wireless telecommunication services in violation
of the Act.
A.
The general purpose of this article is to regulate
the placement, construction, and modification of towers 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 competitive telecommunications market place as it relates
to the City of Millville.
B.
Specifically, the purposes of this article are:
(1)
To regulate the location of towers and telecommunication
facilities within the City of Millville;
(2)
To protect residential areas and land uses from potential
adverse impact of towers and telecommunication facilities;
(3)
To minimize adverse visual impact of towers and telecommunication
facilities through careful design, siting, landscaping and the innovative
camouflaging techniques;
(4)
To promote and encourage shared use/collocation of
towers and antenna support structures as a primary option rather than
construction of additional single-use towers;
(5)
To promote and encourage the utilization of technological
designs that will either eliminate or reduce the need for erection
of new tower structures to support antenna and telecommunication facilities;
(6)
To avoid potential damage to property and personal
injury to residents caused by towers and telecommunication facilities
by ensuring that such structures are soundly and carefully designed,
constructed, modified, maintained and removed when no longer used
or are determined to be structurally unsound;
(7)
To ensure that towers and telecommunication facilities
are compatible with surrounding land use.
The following words, terms, and phrases, when
used in this article, shall have the meanings described to them in
this article, except where the context clearly indicates a different
meaning:
Any building or structure other than a tower which can be
used for location of telecommunication facilities.
Any person, corporation or other entity that applies for
a tower development permit.
The process by which the owner of the parcel of land within
the City of Millville submits a request to develop, construct, build,
modify or erect a tower upon such parcel of land. Application includes
all written documentation, verbal statements, and representations,
in whatever form or forum, made by an applicant to the City concerning
such request.
The City of Millville including its Planning and Zoning Board.
Any engineer licensed to practice within the State of New
Jersey.
A type of freestanding tower with a single shaft of wood,
steel, concrete or other substance and a platform or racks for antennas
arrayed on top or attached thereto.
The person, corporation or other entity with fee title or
long-term (exceeding 10 years) leasehold to any parcel of land within
the City who desires to develop, or construct, build, modify or erect
a tower upon such parcel of land.
Any natural person, firm, partnership, association, corporation,
company, or other legal entity, private or public, whether for profit
or not for profit.
A company, person or other entity which provides wireless
services via a local communications facility.
Any tower or telecommunications facility which is designed
to enhance compatibility with adjacent land uses, including, but not
limited to, architecturally screened roof-mounted antennas, antennas
integrated into architectural elements, and towers designed to look
other than like a tower such as light poles, power poles, and trees.
The term "stealth" does not necessarily exclude the use of uncamouflaged
lattice, guyed, or monopole tower designs.
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 antenna support structure. However,
telecommunications facilities shall not include:
A self-supporting lattice, guyed, or monopole structure constructed
from grade which supports telecommunications facilities. The term
"tower" shall not include amateur radio operators' equipment, as licensed
by the FCC.
A.
Towers shall be a conditional use in all zoning districts
within the City of Millville subject to Planning Board approval except
the River Conservation District and any land subject to the River
Management Plan as adopted by the City of Millville and National Park
Service. Any application for a tower shall require conditional use
approval and major site plan approval. To the greatest extent possible,
both requirements shall be considered as part of a single application.
B.
No person shall build, erect or construct a tower
upon any parcel of land within any zoning district set forth above
unless approval has been received by the appropriate Planning and/or
Zoning Board within the City of Millville.
C.
Towers are exempt from the maximum height restrictions of the districts where located. Towers shall be permitted to a height of 150 feet. Towers may be permitted in excess of 150 feet in accordance with § 30-287, Criteria for site plan development modifications.
D.
No new tower shall be built, constructed or erected
in the City unless the tower is capable of supporting another person's
telecommunication facility comparable in weight, size and surface
area to the telecommunication facility installed by the applicant
on the tower within six months of completion of the towers construction.
E.
All persons seeking to build a tower must submit an
application regarding the same to the City Planning Board. An application
to develop a tower shall include:
(1)
The name, address and telephone number of the owner
and lessee of the parcel of land upon which the tower is situated.
If the applicant is not the owner of the parcel of land upon which
the tower is situated, the written consent of the owner shall be evidenced
in the application.
(2)
The legal description, lot and block number, and address
of the parcel of land upon which the tower is to be situated.
(3)
The names, addresses and telephone numbers of all
owners of other towers or usable antenna support structures within
the City and also within a one-half-mile radius of the City boundaries,
including City-owned property.
(4)
A description of the design plans proposed by the
applicant regarding the tower to be located within the City. The applicant
must identify its utilization of the most technological design, including
microcell design, as part of the design plan. The applicant must demonstrate
the need for towers and why design alternatives, such as the use of
microcell, cannot be utilized to accomplish the provision of the applicant's
telecommunication services.
(5)
An affidavit attesting to the fact that the applicant
made diligent, but unsuccessful, efforts to obtain permission to install
or collocate the applicant's telecommunication facility on City-owned
towers or usable antenna support structures located within the City
and a one-half-mile radius of the City.
(6)
An affidavit attesting to the fact that the applicant
made diligent, but unsuccessful, efforts to install or collocate the
applicant's telecommunications facilities on towers or usable antenna
support structures owned by other persons located within the City
and a one-half-mile radius of the City.
(7)
Written technical evidence from the engineer that
the proposed tower or telecommunications facility cannot be installed
or collocated on another person's tower or usable antenna support
structures owned by other persons located within the City or a one-half-mile
radius of the City.
(8)
A written statement from an engineer that the construction
and placement of the tower will not interfere with public safety communications
and the usual and customary transmission or reception of radio, television
or other communications services enjoyed by adjacent residential and
nonresidential properties.
(9)
Written, technical evidence from an engineer that the proposed structure meets the standards set forth in this article in § 30-81, Structural requirements.
(10)
Written, technical evidence from a qualified
engineer acceptable to the Fire Marshal and the Construction Official
operating within the City that the proposed site of the tower or telecommunication
facility does not pose a risk of explosion, fire, or other danger
to life or property due to its proximity to volatile, flammable, explosive
or hazardous materials such as LP gas, propane, gasoline, natural
gas, or corrosive or other dangerous chemicals.
(11)
In order to assist the Planning and Zoning Boards
in evaluating the visual impact of the application, the applicant
shall submit color photo simulation showing the proposed site of the
tower with a photo-realistic representation of the proposed tower
as it would appear viewed from the closest residential property and
from adjacent roadways.
(12)
The Act gives the FCC sole jurisdiction of the
field of regulation of RF emissions and does not allow the City to
condition or deny on the basis of RF impacts the approval of any telecommunications
facilities (whether mounted on towers or antenna supports structures)
which meet FCC standards. The applicant shall be required to submit
information on the proposed power density of their proposed telecommunications
facility and demonstrate how this meets FCC standards.
(13)
A plot plan, survey and all other plans and
documents required for submission to the City Planning Board.
F.
The City Planning Board may require an applicant to
supplement any information that is considered inadequate or that the
applicant has failed to supply. Any application may be denied on the
basis that the applicant has not satisfactorily supplied the information
in this article. The application shall be reviewed by the City Planning
Board in a prompt manner, and all decisions shall be supported in
writing setting forth the reasons for approval or denial.
A.
Setback for each tower shall be 150% of the height
of the tower from the property line on all sides. Example, a one-hundred-foot
tower would have to be setback at least 150 feet from each property
line on the property where said tower would be located.
B.
Setback requirements for towers shall be measured
from the base of the tower to the property line of the parcel of land
on which it is located.
All towers must be designed and certified by
an engineer to be structurally sound, and at a minimum, be in conformance
with the Uniform Construction Code and BOCA National Property Code
and all other standards as set forth in this article or as otherwise
applicable. All towers in operation shall be fixed to land.
For the purpose of this section, the distances
between towers shall be measured by drawing or following a straight
line between the base of the existing or approved structure and the
proposed base, pursuant to a site plan of the proposed tower. Tower
separation distances from residentially zoned lands shall be measured
from the base of the tower to the closest point of residentially zoned
properties. The minimum tower separation distances from residentially
zoned land and from other towers shall be calculated and applied irrespective
of the City's jurisdictional boundaries.
A.
Towers shall be separated from residentially zoned
lands by a minimum of 200 feet or 200% of the height of the proposed
tower, whichever is greater. To the extent that this section imposes
a greater setback requirement than otherwise set forth in this article,
this section shall be controlling.
B.
Proposed towers must meet the following minimum separation
requirements from existing towers or towers which have a development
permit but are not yet constructed at the time a development permit
is granted pursuant to this article:
(1)
Monopole tower structures shall be separated from
all other towers, whether monopole, self-supporting lattice, or guyed
by a minimum of 750 feet.
(2)
Self-supporting lattice or guyed tower structures
shall be separated from all other self-supporting guyed towers by
a minimum of 1,500 feet.
(3)
Self-supporting lattice or guyed tower structures
shall be separated from all monopole towers by a minimum of 750 feet.
Measurement of the tower height for the purpose
of determining compliance with all requirements of this article shall
include the tower structure itself, the base pad and any other telecommunication
facilities attached thereto which extend more then 20 feet over the
top of the tower structure itself. Tower heights shall be measured
from grade.
Towers shall not be artificially lighted except
as required by the Federal Aviation Administration. Upon commencement
of construction of a tower, in cases where there are residential uses
located within a distance which is 300% of the height of the tower
from the tower and when required by federal law, dual mode lighting
shall be requested from the FAA.
Towers not requiring FAA painting or marking
shall have an exterior finish which enhances the compatibility with
adjacent land uses, and the same shall be approved by the Planning
Board of the City of Millville. For example, earth tone colors may
be required for the fifty-foot portion of the tower which is close
to land or whose background is a forest or other type scenery or blue
or sky colors may be required for the portion of the tower extending
above 50 feet so that the same would blend in with the natural horizon.
All landscaping on a parcel of land containing towers, antenna support structures or telecommunications facilities shall be in accordance with the applicable landscaping requirements as set forth in this Chapter 30, Land Use and Development Regulations. In addition to said requirements, the City may request perimeter trees which upon maturity would be 30 feet or higher performing a circular pattern around such tower, antenna support structure or telecommunications facility. Additionally, any nontree area shall aesthetically pleasing environment and to enhance the compatibility with adjacent land uses. A wooden fence may also be required, and any landscaping shall be installed on the outside of any such fencing. A fence may be required for safety purposes. All trees required shall be compatible with indigenous Pineland trees.
The parcel of land upon which a tower is located
must provide access to at least one paved vehicular parking space
on site. Additional parking may be required by the Planning Board
based on use. Adequate area must exist for vehicles to "turn around"
at the site. All access roads to the site must be paved with asphalt
or be of compacted gravel.
All towers must attempt to use stealth design,
and no tower which is considered a conditional use shall be approved
unless said stealth design is used.
Any telecommunication facilities which are not
attached to a tower may be permitted on any antenna support structure
at least 100 feet tall, regardless of the zoning restrictions applicable
to the zoning district where the structure is located. Telecommunications
facilities are prohibited on all other structures shall, by written
certification to the Zoning Officer, establish the following at the
time plans are submitted for a building permit:
A.
That the height from grade of the telecommunications
facilities shall not exceed the height from grade of the antenna support
structure by more than 20 feet;
B.
That any telecommunications facilities and their appurtenances,
located above the primary roof of an antenna support structure, are
set back one foot from the edge of the primary roof for each one foot
in height above the primary roof of the telecommunications facilities.
This setback requirement shall not apply to telecommunications facilities
and their appurtenances, located above the primary roof of an antenna
support structure, if such facilities are appropriately screened from
view through the use of panels, walls, fences, or other screening
techniques approved by the City of Millville. Setback requirements
shall not apply to stealth antennas which are mounted to the exterior
of antenna support structures below the primary roof, but which do
not protrude more than 18 inches from the side of such an antenna
support structure.
A.
A tower existing prior to the effective date of this article, which was in compliance with the City's zoning regulations immediately prior to the effective date of this article, may continue in existence as a nonconforming structure. Such nonconforming structure may be modified or demolished and rebuilt without complying with any of the additional requirements of this article, except for § 30-276, Buffer requirements, § 30-285, Certifications and inspections, and § 30-286, Maintenance, provided that:
(1)
The tower is being modified or demolished and rebuilt
for the sole purpose of accommodating, within six months of the completion
of the modification or rebuild, additional telecommunications facilities
comparable in weight, size and surface area to the discrete operating
telecommunications facilities of any person currently installed on
the tower.
(2)
An application for a development permit is made to
the City Planning Board which shall have the authority to issue a
development permit without further approval. The grant of a development
permit pursuant to this section allowing the modification or demolition
and rebuild of an existing nonconforming tower shall not be considered
a determination that the modified or demolished and rebuilt tower
is conforming.
(3)
The height of the modified or rebuilt tower and telecommunications
facilities do not exceed the maximum height allowed under this article.
B.
Except as provided in this section, a nonconforming
structure or use may not be enlarged, increased in size or abandoned.
For the purpose of this article a nonconforming structure which is
discontinued for a period of more than 180 days, unless said discontinuance
is for repairs, shall be considered abandoned. This article shall
not be interpreted to legalize any structure or use existing at the
time this article is adopted which structure or use is in violation
of any of the ordinances of the City of Millville or any other federal,
state or county statutes, regulations, ordinance or other laws prior
to the enactment of this article.
A.
All towers shall be certified by an engineer to be structurally sound and in conformance with the requirements of the Uniform Construction Code and BOCA National Code and all other construction standards set forth by the City ordinances and federal and state law. For new monopole towers, such certification shall be submitted with an application pursuant to § 30-273 of this article, and said application shall be resubmitted every five years thereafter. For existing monopole towers, certification shall be submitted within 60 days of the effective date of this article and then every five years thereafter. For new lattice or guyed towers, such certification shall be submitted with an application pursuant to § 30-273 of this article and shall be resubmitted every two years thereafter. For existing lattice of guyed towers, certification shall be submitted within 60 days of the effective date of this article and then every two years thereafter. The tower owner may be required by the City to submit more frequent certifications should there be reason to believe that the structural and electrical integrity of the tower is jeopardized.
B.
The City or its agents shall have the authority to
enter onto the property upon which a tower is located, between the
inspections and certifications required above, to inspect the tower
for purposes of determining whether it complies with all sections
of this article and other City ordinances and any federal or state
law or state, county or federal rule or regulation.
C.
The City reserves the right to conduct such inspections
at any time, upon reasonable notice to the tower owner. No notice
is required for emergency inspections. All expenses related to such
inspections by the City shall be borne by the tower owners.
A.
Tower owners shall at all times employ ordinary and
reasonable care and shall install and maintain in use nothing less
than commonly accepted methods and devices for preventing failures
and accidents which are likely to cause damage, injuries, or nuisances
to the public.
B.
Tower owners shall install and maintain towers, telecommunications
facilities, wires, cables, fixtures, and other equipment in substantial
compliance with the requirements of the National Electric Safety Code
and all FCC, state and local regulations and in such manner that will
not interfere with the use of the property.
C.
All towers, telecommunications facilities and antenna
support structures shall at all times be kept and maintained in good
condition and working order, and shall be repaired so that the same
shall not menace or endanger the life or property of any person.
D.
All maintenance or construction of towers, telecommunications
facilities or antenna support structures shall be performed by licensed
maintenance and construction personnel.
E.
All towers shall maintain compliance with current
RF emission standards of the FCC and all other applicable FCC rules
and regulations.
F.
In the event that the use of the tower is discontinued
by the tower owner, the tower owner shall provide written notice to
the City of its intent to discontinue use and the date when said use
shall be discontinued. The tower owner shall be specifically responsible.
If FCC approval is required, the tower shall be dismantled within
six months from the time it is no longer being used for telecommunication
purposes and FCC approval is obtained, but in no event shall the tower
exist in excess of 12 months from the time of discontinued use.
A.
Notwithstanding the tower requirements provided in
this article, a modification to the requirements may be approved by
the Planning and/or Zoning Board as a conditional use in accordance
with the following:
(1)
In addition to the requirement for a tower application,
the application for modification shall include the following:
(a)
A description of how the plan addresses any
adverse impact that might occur as a result of approving the modification.
(b)
Description of off-site or on-site factors which
mitigate any adverse impact which might occur as a result of the modification.
(c)
A technical study that documents and supports
the criteria submitted by the applicant upon which the request for
modification is based. The technical study shall be certified by an
engineer and shall document the existence of the facts related to
the proposed modifications and its relationship to surrounding rights-of-way
and properties.
(d)
For a modification of the setback requirement,
the application shall identify all parcels of land where the proposed
tower could be located, attempts by the applicant to contact and negotiate
an agreement for collocation, and the result of such attempts.
(e)
The Planning Board may require the application
to be reviewed by an independent engineer under contract to the City
to determine whether the antenna study supports the basis for the
modification requested. The cost to review by the City's engineer
shall be reimbursed to the City by the applicant.
(2)
The Planning and/or Zoning Board shall consider the
application and modification based on the following criteria:
(a)
That the towers modified will be compatible
with and not adversely impact the character and integrity of surrounding
properties and the existing zone.
(b)
Off-site or on-site conditions exist which mitigate
the adverse impacts, if any, created by the modifications.
(c)
In addition, the Board may include conditions
on the site where the tower is to be located if such conditions are
necessary to preserve the character and integrity of the neighborhoods
affected by the proposed tower to mitigate any adverse impact which
arise in connection with the approval of the modification.
B.
In addition to the requirements of Subsection A, in the following cases, the applicant must also demonstrate, by written evidence, the following:
(1)
In the case of a requested modification to the setback requirement, § 30-274, that the setback requirement cannot be met on the parcel of land upon which the tower is proposed to be located and the alternative for the person is to locate the tower at another site which is closer in proximity to a residentially zoned land.
(2)
In the case of a request for modification to the separation and buffer requirements from other towers set forth in § 30-276, that the proposed site is zoned industrial, heavy industrial and the proposed site is at least double the minimum standard for separation from residentially zoned lands as provided in said § 30-276.
(3)
In the case of request for modification of the separation and buffer requirements from residentially zoned land as set forth in § 30-276, if the person provides written technical evidence from an engineer that the proposed tower and telecommunications facility must be located at the proposed site in order to meet the coverage requirements of the applicant's wireless communications system and if the person is willing to create approved landscaping and other buffers to screen the tower from being visible to residentially zoned properties.
(4)
In the case of a request for modification of the height
limits for towers and telecommunications facilities or to the minimum
height requirements for antenna support structures, that the modification
is necessary to:
(a)
Facilitate collocation of telecommunications
facilities in order to avoid construction of a new tower;
(b)
To meet the coverage requirements of the applicant's
wireless communications system which requirements must be documented
with written, technical evidence from an engineer that demonstrates
that the height of the proposed tower is the minimum height required
to function satisfactorily, and no tower that is taller than such
minimum height shall be approved.
A.
If any tower shall cease to be used for a period of
365 consecutive days, the City Commission or City Planning Board,
through the City Clerk, shall notify the owner, with a copy to the
applicant, that such site has been abandoned. The owner shall have
30 days from the receipt of said notice to show, by a preponderance
of the evidence, that the tower has been in use or under repair during
the period. If the owner fails to show that the tower has been in
use or under repair during said period, the City Commission shall
issue a final determination of abandonment, the owner shall within
75 days apply to the FCC for the dismantling and within 180 days of
such approval dismantle and remove the tower. If no such FCC approval
is necessary, then said tower shall be dismantled and removed within
180 days of cease of use, In no event shall the tower not be dismantled
within 365 days from cease of use.
B.
As security for the obligations set forth in this
section, the applicant, at the time of submitting the application,
shall post a bond in an amount as determined by the City Engineer
which said bond being of such amount to cover the anticipated cost
and any removal of any such tower.
The minimum lot area for any lot which will have a tower located thereon within the City of Millville shall be sufficient to comply with the setback requirements set forth in § 30-274. The minimum lot area shall be sufficient to permit a setback of a minimum of 150% of the height of the tower, measured from the perimeter of the base of the tower to the nearest property line. The height of the tower shall be calculated as set forth in § 30-277.
All applications to determine whether or not
a tower may be sited within the City of Millville shall be submitted
to reviewed and approved or disapproved by the City Planning Board.
In addition to addressing the requirements set forth in this article,
the Planning Board shall consider any and all additional site plan
requirements.
In addition to the requirements set forth herein,
all applicants must receive any and all necessary federal and state
approvals, including but not limited to approval from the FCC and
FAA, if applicable.
No signs shall be permitted at or on any tower
or antenna support structure except signs warning of any potential
danger at such location.
