[HISTORY: Adopted by the City Council of the City of Brigantine 6-15-1999
by Ord. No. 9-1999. Amendments noted where applicable.]
The Communications Act of 1934, as amended by the Telecommunications
Act of 1996, grants the Federal Communications Commission exclusive jurisdiction
over the regulation of the environmental effects of radio frequency (RF) emissions
from telecommunications facilities; and the regulation of radio signal interference
among users of the RF spectrum. Therefore, the City of Brigantine's regulation
of towers and telecommunications facilities in said municipality will not
have the effect of prohibiting any person from providing wireless telecommunications
services in violation of said Act.
The general purpose of this chapter is to regulate the placement, construction
and modification of towers and telecommunications 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 a competitive wireless telecommunications
marketplace in the City. Specifically, the purposes of this chapter are: to
regulate the location of towers and telecommunications facilities within the
City of Brigantine; to protect residential areas and land uses from potential
adverse impact of towers and telecommunications facilities; to minimize adverse
visual impact of towers and telecommunications facilities through careful
design, siting, landscaping and innovative camouflaging techniques; 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;
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; to avoid potential damage
to property caused by towers and telecommunications facilities by ensuring
such structures are soundly and carefully designed, constructed, modified,
maintained and removed when no longer used or are determined to be structurally
unsound; to ensure that towers and telecommunications facilities within the
City of Brigantine are compatible with surrounding land uses.
The following words, terms and phrases, when used in this chapter, shall
have the meanings described to them in this section except where the context
clearly indicates a different meaning:
Any building or structure other than a tower which can be used for
location of telecommunications facilities, including any water tower located
within the City of Brigantine.
Any person who applies for the necessary permits and zoning approval
to erect a tower within the City of Brigantine.
The process by which the owner of the parcel of land within the City
of Brigantine 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 of Brigantine concerning such request.
Any engineer licensed by the State of New Jersey.
Any person with fee title or long-term leasehold, equal or exceeding
10 years in length, for any parcel of land within the City of Brigantine 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.
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 Federal
Communications Commission (FCC).
A.
Towers shall be a conditional use in all zoning districts
within the City of Brigantine. No person shall build, erect or construct a
tower upon any parcel of land within the City of Brigantine unless all requirements
of this chapter and all other zoning requirements are made.
B.
No person shall build, erect or construct a tower upon
any parcel of land within any zoning district within the City of Brigantine
unless an application has been filed to the Planning Board of the City of
Brigantine pursuant to this chapter and an applicant has met all requirements
herein as well as meeting the requirement of any and all site plan approval
as deemed necessary by said Planning Board. Any application for permission
to build a tower and application for site plan approval shall, to the greatest
extent possible, be submitted and heard as part of one application.
C.
Towers are exempt from the maximum height restrictions
of the districts where located. Towers shall be permitted to a height of 150
feet.
D.
No new tower shall be built, constructed or erected in
the City unless the tower is capable of supporting another person's operating
telecommunications facility comparable in weight, size and surface area to
the telecommunications facility installed by the applicant on the tower within
six months of completion of the tower's construction.
E.
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, folio 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 a five-mile radius
of the proposed new tower site, including any City-owned property.
(4)
A description of the design plans proposed by the applicant.
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
telecommunications 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 telecommunications facilities on City-owned towers
or usable antenna support structures located within a five-mile radius of
the proposed tower site.
(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 a five-mile radius of the proposed tower
site.
(7)
Written technical evidence from an 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 a five-mile radius of the proposed tower site.
(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 the section of this chapter entitled "Structural requirements" (see § 272-6).
(10)
Written, technical evidence from a qualified engineer
acceptable to the appropriate members of the Brigantine Fire Department and
the Brigantine construction office that the proposed site of the tower or
telecommunications 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 liquified petroleum (LP) gas, propane, gasoline,
natural gas or corrosive or other dangerous chemicals.
(11)
In order to assist the personnel of the City of Brigantine
and the Planning Board 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 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 support structures, which meet FCC standards.
In order to provide information to its citizens, the City shall make available,
upon request, copies of ongoing FCC information and RF emissions standards
for telecommunications facility transmitting from towers or antenna support
structures. The applicant shall be required to submit information on the proposed
power density of the proposed telecommunications facilities and demonstrate
how this meets FCC standards. The Planning Board may require an applicant
to supplement any information that the Board considers inadequate or that
the applicant has failed to supply. The Board may deny an application on the
basis that an applicant has not satisfactorily supplied the information required
of this chapter. Applications shall be reviewed by the Planning Board pursuant
to the Municipal Land Use Law[1] and all decisions shall be supported in writing setting forth
the reason for approval or denial. Any such reasons in writing setting forth
the reasons for approval or denial shall be attached to any resolution of
the Board granting or denying such application.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
The City of Brigantine is desirous of ensuring that towers may be sited
in the City of Brigantine pursuant to the Telecommunications Act while at
the same time balancing the safety, health and well-being of the residents
of the City of Brigantine. Therefore, setbacks for any towers must be such
that they minimize the potential for property damage, personal injury or loss
of life due to tower failure or collapse. This is particularly important in
a community such as the City of Brigantine which is often victimized by hurricanes
and/or northeastern storms. Therefore, the setbacks from any and all property
lines in the City of Brigantine (i.e., side yard setbacks, front yard setbacks
and rear yard setbacks) shall be two feet for every one foot in height of
said tower. For example:
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[1] and any other codes, ordinances, laws or regulations governing
such towers. All towers in operation shall be fixed to land or fixed to an
antenna support structure which is fixed to land.
For the purpose of this section of the chapter, the separation 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 jurisdictional boundaries of the City of Brigantine.
A.
Towers shall be separated from any residential zone by
a minimum of 200 feet or 200 percent of the height of the proposed tower,
which ever is greater.
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 chapter:
(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 chapter shall include the tower structure itself,
the base pad and any other telecommunications 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 (FAA). 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 as approved
by the Planning Board.
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 the Zoning Ordinance of
the City of Brigantine for commercial uses. The Planning Board may require
landscaping in excess of the requirements contained in the Municipal Land
Use Ordinance[1] in order to enhance the compatibility of the tower with adjacent
land uses. The Planning Board may also require a fence around the perimeter
of the tower and any landscaping shall be installed outside of any such fencing.
The parcel of land upon which a tower is located must provide access
via a paved bituminous driveway or at least one paved vehicular parking space
on site with sufficient room for a normal sized vehicle to be able to make
a K-turn or otherwise turn around.
All towers approved as a conditional use shall be of stealth design.
Any antenna which is not attached to a tower may be permitted on any
antenna support structure when said support structure is at least 125 feet
tall, regardless of the zoning restrictions applicable to the zoning district
where the structure is located. Antennas are prohibited on all other structures.
The owner of such structure 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 antenna shall not exceed
the height from grade of the antenna support structure by more than 20 feet.
B.
That any antenna and the appurtenances thereto, located
on any building above the primary roof of said building, shall be set back
one foot from the edge of the roof of said building for each one foot in height
above the roof of the antenna. This setback requirement shall not apply to
any water towers located in the City of Brigantine, and any antenna no greater
in height than 20 feet may be located on any such water towers without regard
to any setback requirements as set forth herein. No antennas shall be allowed
to be mounted on the exterior of an antenna support structure below the primary
roof thereof.
A tower existing prior to the effective date of this chapter, which
was in compliance with the City of Brigantine's zoning regulations immediately
prior to the effective date of this chapter, may continue in existence as
a nonconforming structure. Such nonconforming structures may only be modified
pursuant to the Municipal Land Use Ordinance,[1] and if any such structure is totally destroyed, the same will
not be able to be rebuilt unless it meets the then existing requirements of
the Municipal Land Use Ordinance and also meets the requirements of this chapter,
as amended. Any antenna, tower or telecommunication facility which is not
in use for any period of 180 days shall be considered abandoned under the
Municipal Land Use Law of the State of New Jersey.[2] Additionally, any antenna, tower or telecommunications facility
which was existing but not in use for 180 days prior to the adoption of this
chapter shall not be considered a preexisting conforming use or structure.
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 all other construction, fire and property maintenance codes and ordinances[1] in effect in the City of Brigantine, County of Atlantic, and State
of New Jersey, including any state and federal law. For new monopole towers,
such certification shall be submitted with the application for the same and
a certification shall be submitted every five years thereafter. For existing
monopole towers, certification shall be submitted within 60 days of the effective
date of this chapter and shall then be submitted every five years thereafter.
For new lattice or guyed towers, such certification shall be submitted with
the application made pursuant to this chapter and every two years thereafter.
For existing lattice of guyed towers, certification shall be submitted within
60 days of the effective date of this chapter and every two years thereafter.
The tower owner may be required by the City of Brigantine to submit more frequent
certifications should there be reason to believe that the structural and electrical
integrity of the tower is jeopardized or in any way compromised.
B.
The City of Brigantine or its agents and employees shall
have the authority to enter onto the property upon which a tower is located,
at any time between the inspections and certifications required above, to
inspect the tower for purposes of determining whether it complies with the
Uniform Construction Code[2] and all other codes and standards which are applicable, including
any City ordinance or federal or state law. Such entry upon such property
shall be with prior notice where the tower owner has registered a current
address to receive such communication with the City Manager of the City of
Brigantine.
C.
All expenses related to such inspections by the City
of Brigantine shall be borne by the owner of such tower.
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,
order and repair 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 as promulgated by the FCC or other body with jurisdiction regarding
the same.
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.
A.
If any tower shall cease to be used for a period of 180 consecutive days and the City of Brigantine has not been notified of the same pursuant to § 272-17F, the City of Brigantine shall notify the owner, with a copy to the applicant if other than the owner, that the site will be subject to a determination by the City of Brigantine that said site is no longer in use. The owner shall have 30 days from the receipt of such notice to request a hearing from the City of Brigantine and at said hearing, which shall be held before the City Council of the City of Brigantine, show by a preponderance of the evidence that the tower has been in use or under necessary repair during said time period. If the owner fails to show that the tower has been in use or under necessary repair during said time period, the City Council shall issue a final determination that the site is not in use. Upon the issue of such determination, the owner shall have 75 days to dismantle or remove the tower. If the owner or applicant fails to request a hearing as set forth herein, they shall be deemed to have waived such rights.
B.
Whenever a tower has been abandoned, the same must be
dismantled within 75 days of the date of such abandonment.
C.
For security obligations set forth in this section, the
applicant and/or owner shall post a bond in an amount to be determined by
the office of the City Engineer. Such amount shall be determined by the City
Engineer based upon the anticipated cost of removal of said tower.
