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.
- ACCESSORY FACILITY OR STRUCTURE
- 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.
- APPLIED WIRELESS 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.
- BREAK POINT
- 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.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- 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).
- CONDITIONAL USE PERMIT
- 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.
- FREESTANDING TOWER
- 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.
- PERSONAL WIRELESS FACILITY
- See the definition for "wireless telecommunications facility."
- PERSONAL WIRELESS SERVICES (PWS) or PERSONAL TELECOMMUNICATIONS SERVICE (PCS) (or any functionally equivalent service or technology that may be developed in the future)
- 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.
- TELECOMMUNICATIONS STRUCTURE
- 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.
- WIRELESS TELECOMMUNICATIONS FACILITY, TOWER, SITE OR PERSONAL WIRELESS FACILITY (or any functionally equivalent service or technology that may be developed in the future)
- 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.
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.
Any conditional use permit for a wireless telecommunications facility issued shall, to the greatest extent possible, conform to the following goals:
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.
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.
Promote and encourage, wherever possible, the sharing and/or co-location of a wireless telecommunications facility among service providers.
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.
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.
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.
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.
Applications not meeting the requirements stated herein, or which are otherwise incomplete, shall be rejected by the Planning Board.
The applicant shall include a statement, in writing:
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.
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.
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.
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:
Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily within the City.
Name and address of the person preparing the report.
Name and address of the property owner, operator and applicant, to include the legal form of the applicant.
Postal address and Tax Map designation of the property.
Zoning district in which the property is situated.
Size of the property, stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines.
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.
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.
Location of all structures on the property which is the subject of the application.
Location, size and height of all proposed and existing antennas and all appurtenant structures.
Type, size and location of all proposed and existing landscaping.
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.
The make, model and manufacturer of the wireless facility and antenna(s).
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.
The frequency, modulation and class of service of radio or other transmitting equipment.
Transmission and maximum effective radiated power of the antenna(s).
Direction of maximum lobes and associated radiation of the antenna(s).
The applicant's proposed wireless facility maintenance and inspection procedures and related system of records.
Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC.
Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices.
A copy of the FCC license applicable for the use of the wireless telecommunications facility.
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.
Propagation studies of the proposed site and all adjoining proposed or in-service or existing sites.
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.
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.
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.
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.
A visual impact assessment, which shall, at the Planning Board's request, include:
A "zone of visibility" map, which shall be provided in order to determine locations where the facility may be seen.
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.
An assessment of the visual impact of the facility base, guy wires and accessory structures from abutting and adjacent properties and streets.
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.
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.
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.
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.
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.
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.
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.
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:
The number of foreseeable FCC licenses available for the area.
The kind of wireless telecommunications facility site and structure proposed.
The number of existing and potential licenses without wireless telecommunications facility spaces/sites.
Available space on existing and approved telecommunications towers.
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.
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.
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:
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.
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.
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.
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.
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.
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:
Conflict with safety and safety-related codes and requirements.
Conflict with traffic needs or traffic laws, or definitive plans for changes in traffic flow or traffic laws.
Conflict with the historic nature of a neighborhood or historical district.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The decision on the application shall also be filed in the office of the City Clerk within 10 days after it is rendered.
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.
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:
The name of the holder of the conditional use permit for the wireless telecommunications facility.
If applicable, the number or title of the conditional use permit.
The date of the original granting of the conditional use permit.
Whether the wireless telecommunications facility has been moved, relocated, rebuilt, repaired or otherwise modified since the issuance of the conditional use permit.
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.
Any requests for waivers or relief of any kind whatsoever from the requirements of this article and any requirements for a conditional use permit.
That the wireless telecommunications facility is in compliance with the conditional use permit and in compliance with all applicable codes, laws, rules and regulations.
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.
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.
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:
Such conditional use permit shall be nonexclusive.
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.
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.
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.
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.
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 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:
The commercial general liability insurance policy shall specifically include the City and its officials, employees and agents as additional insureds.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
A permitted wireless telecommunications facility falls into such a state of disrepair that it creates a health or safety hazard.
A wireless telecommunications facility has been located, constructed or modified without first obtaining the required conditional use permit or any other necessary authorization.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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.
Editor's Note: See N.J.S.A. 40:55D-1 et seq.