Edgewater City Zoning Code
ARTICLE XX
Wireless Telecommunications Towers and Antennas
§ 240-168 Definitions.
As used in this article, the following terms shall have the meanings indicated:
Shall include but not be limited to man-made trees, clock towers, bell steeples and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers.
Any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals.
The lines that connect a provider's towers/cell sites to one or more cellular telephone switching offices, and/or long-distance providers, or the public switched telephone network.
When two or more receiving and/or transmitting facilities are placed together on the same tower or monopole.
The Federal Aviation Administration.
The Federal Communications Commission.
The Mayor and Council of the Borough of Edgewater and/or its designated agents, employees and representatives.
When referring to a tower or other structure, the distance measured from the finished grade of the parcel to the highest point on the tower or other structure, including any rooftop appurtenance on an existing structure, and including the base pad and any antenna, even if said highest point is an antenna.
The Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
The Edgewater Planning Board, whose statutory authority is defined by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
Shall have the meaning set forth in § 240-169C of this article.
The zoning official of the Borough of Edgewater.
Any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including but not limited to self-supporting lattice towers, guy towers or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures and the like. The term includes the structure and any supports thereto.
§ 240-169 Applicability.
A.
New towers and antennas. All new towers or antennas to be sited in the Borough of Edgewater shall be subject to these regulations.
B.
District height limitations. The requirements set forth in this article shall govern the heights of all towers and antennas to be constructed in each zoning district. The height limitations applicable to buildings and structures shall not apply to towers and antennas facilities.
C.
Preexisting towers and antennas. Any wireless communication tower or antenna on which a permit has been properly issued prior to the effective date of this article shall not be required to meet the requirements of this article, other than the requirements of § 240-170E and F. This includes permitted towers or antennas that have not yet been constructed, so long as such approval is current and not expired. Any such towers or antennas shall be referred to in this article as "preexisting antennas."
D.
Public property. Antennas or towers located on property owned, leased or otherwise controlled by the Borough of Edgewater shall be exempt from the requirements of this article, provided a license or lease authorizing such antenna or tower has been approved by resolution by the governing body. Said approved municipal sites utilized for the purposes of construction or locating towers and/or antennas shall be treated as engaging in a permitted use under this article.
[Added 8-16-2010 by Ord. No. 1434-2010]
§ 240-170 General guidelines and requirements.
A.
Purpose; goals. The purpose of this article is to establish general guidelines for the siting of wireless communication towers and antennas.
(1)
The goals of this article are to:
(a)
Protect residential areas and land uses from potential adverse impacts of towers and antennas;
(b)
Encourage the location of towers in nonresidential areas;
(c)
Minimize the total number of towers throughout the community;
(d)
Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;
(e)
Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal;
(f)
Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques;
(g)
Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;
(h)
Require that such towers are properly constructed, maintained and dismantled, and that appropriate security is posted to ensure same and the safety of Borough residents;
(i)
Consider the public health and safety of communication towers; and
(j)
Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.
(2)
In furtherance of these goals, the Planning Board shall give due consideration to the Borough of Edgewater's Master Plan, Zoning Map, existing land uses and environmentally sensitive areas in approving sites for the location of towers and antennas.
B.
Principal or accessory use. Antennas may be considered either principal or accessory uses, and towers shall be considered a principal use only. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna on such lot but shall preclude the construction of a tower. For the purpose of determining whether the installation of a tower or antenna complies with zoning regulations, including but not limited to setback requirements, lot coverage requirements and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lots.
C.
Inventory of existing sites. Each applicant for an antenna and/or tower shall provide to the Planning Board an inventory of all existing towers, antennas or sites approved for towers or antennas that are both within the jurisdiction of the governing authority and within 1/4 mile of the border thereof, including specific information about the location, height and design of each tower.
D.
Aesthetics; lighting. The guidelines set forth in this Subsection D shall govern the aesthetic appearance of all towers and the installation of all antennas governed by this article; provided, however, that the Planning Board may grant variances to these requirements if it determines that the goals of this article are better served thereby and in accordance with the Municipal Land Use Law (MLUL).
(1)
Towers shall maintain a galvanized steel finish, subject to any applicable standards of the FAA, and shall be painted a neutral color so as to reduce visual obtrusiveness. Colors, textures, screening, camouflage and landscaping shall be used to blend the tower facilities to the natural setting and surrounding environment.
(2)
If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment shall be camouflaged so as to make the antenna and related equipment as visually unobtrusive as possible.
(3)
Towers shall not be artificially lighted unless required by the FAA or other applicable authority. If lighting is required, the Planning Board may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views and residential areas.
E.
Federal requirements. All towers must meet or exceed current standards and regulations of the FAA, FCC and any other agency of the federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this article shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. Any such removal shall be ordered by the Planning Board, as all approvals granted herein shall be unequivocally deemed conditional approvals subject to this provision, or by order of the Edgewater Construction Official.
F.
Building codes; safety standards. To ensure the structural integrity of all wireless communication towers within the Borough of Edgewater, the owner of each tower shall ensure that the tower is maintained in compliance with standards contained in the Uniform Construction Code and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If upon inspection the governing authority concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then, upon notice being provided to the owner of the tower, the owner shall have 10 days to bring such tower into compliance with such standards. If the owner fails to bring such tower into compliance within said 10 days, then the Mayor and Council, in conjunction with the Borough of Edgewater's Construction Official, may order the removal of such tower at the owner's expense, and lien the property for all costs incurred, including professional fees expended.
G.
Signs. No signs or other nonessential accoutrements shall be allowed on any antenna or tower, with the exception of warning signs or other signs required by federal, state or local law.
H.
Buildings and support equipment associated with the antennas or towers shall comply with the requirements of § 240-174.
I.
Access road. All access roads leading to the tower and antenna area shall be paved with asphalt. The access road shall include an area for sufficient parking and turnaround radius for at least one vehicle.
J.
Not essential services. Towers and antennas shall be regulated and permitted pursuant to this article and shall not be regulated or permitted as essential services, public utilities, or private utilities.
K.
Franchises. Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Borough of Edgewater have been obtained, and shall file a copy of all required franchises with the Clerk of the Borough of Edgewater, who shall distribute copies of same to the Borough Construction Official and Edgewater Building Department.
L.
Maximum tower height. The maximum height of any tower shall not exceed 70 feet. For purposes of measurement, the maximum tower height shall include any structures supported by the tower and any antenna.
§ 240-171 Permitted uses.
B.
Specific permitted uses. The following uses are specifically permitted:
(1)
Locating a tower, including the placement of supporting equipment used in connection with said tower, in the R-3, R-4, R-5, SRH, MCRD, CBD, B-1, B-2, B-3, B-4, MXD-1, MXD-2, MXD-3 and OR-1 Zoning Districts; provided, however, that such tower shall be set back from any existing off-site residence a distance equal to the height of the tower;
[Amended 12-17-2012 by Ord. No. 1485-2012; 9-15-2014 by Ord. No. 1512-2014]
(2)
Installing an antenna on an existing structure other than a tower (such as a building, sign, light pole, water tower or other freestanding structure) that is no less than 60 feet in height, so long as said antenna adds no more than 10 feet to the height of said existing structure; provided, however, that the aforesaid height restrictions shall not apply to any structures owned by the Borough of Edgewater; and
(3)
Installing an antenna on any existing tower of any height, so long as the addition of said antenna adds no more than 10 feet to the height of said existing tower.
§ 240-172 Administrative approvals.
A.
The Edgewater Planning Board has exclusive jurisdiction pursuant to the MLUL and this article, unless it is determined that the Edgewater Board of Adjustment has jurisdiction pursuant to the provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., at which point the provisions of this article shall apply to the Edgewater Board of Adjustment.
B.
Each applicant for administrative approval shall apply to the Planning Board or the Zoning Board of Adjustment as indicated supra, providing the information required in this article, together with a nonrefundable fee as established by resolution of the Borough Council to reimburse the Borough of Edgewater for the costs of reviewing the application.
C.
The Planning Board or the Zoning Board of Adjustment, as indicated supra, shall review the application and determine if the proposed use complies with the provisions of this article.
§ 240-173 Nonpermitted towers and antennas; use variances.
A.
Applicability. If the tower or antenna is not a permitted use under § 240-171 of this article, then the applicant shall be required to submit its application to the Edgewater Zoning Board of Adjustment for a use variance, pursuant to N.J.S.A. 40:55D-1 et seq., which shall have jurisdiction over the application.
(1)
In granting a use variance, the Zoning Board of Adjustment may impose conditions to the extent the Board concludes that such conditions are necessary to minimize any adverse effect of the proposed tower or antenna facility on adjoining properties.
(2)
Upon either filing, i.e., use permits or site plan approval, all proofs of an engineering nature that the applicant submits, whether civil, mechanical or electrical, shall be certified by a licensed professional engineer. Reports submitted by radio frequency (RF) experts shall be exempt from this requirement.
(3)
An applicant seeking a use variance shall submit the information described in this section, together with an amount to be deposited into escrow to reimburse the Borough of Edgewater for the costs of reviewing the application.
B.
Information required. Each applicant requesting a use variance under this article shall submit the following information:
(1)
A scaled site plan clearly indicating the location, type and height of the proposed tower or antennas, on-site land uses and zoning, adjacent land uses and zoning (including, when adjacent to other municipalities, Master Plan classification of the site), adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower or antennas and any other structures, topography, parking and other information deemed by the Board of Adjustment to be necessary to assess compliance with this article.
(2)
Legal description of the parent tract and leased parcel (if applicable).
(3)
The setback distance between the proposed tower or antenna and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties.
(4)
The separation distance from other towers and antennas described in the inventory of existing sites submitted pursuant to § 240-170C shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and antennas and the owner/operator of the existing tower(s) and antennas.
(5)
A landscape plan showing specific landscape materials.
(6)
Method of fencing, finished color, camouflage and illumination.
(8)
A notarized statement supported by appropriate engineering and supporting data demonstrating how the construction of the tower or antenna facility will accommodate co-location of additional antennas for future reference.
(9)
Identification of the entities providing the backhaul network for the tower(s) or antennas described in the application and other cellular sites owned or operated by the applicant in the municipality.
(10)
A description of the suitability of the use of existing towers, antenna sites or other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower or antennas.
(11)
Line-of-sight analysis detailing the view of the proposed tower or antennas from various directions and angles from adjacent residential areas. The analysis shall be utilized to determine buffer requirements.
(12)
Any other information deemed by the Zoning Board of Adjustment to be necessary to assess compliance with the MLUL and this article.
C.
Factors considered in granting use variances. The Edgewater Zoning Board of Adjustment shall consider the following factors in determining whether to issue a use variance:
(1)
Height of the proposed tower;
(2)
Proximity of the tower to residential structures and residential district boundaries;
(3)
Nature of uses on adjacent and nearby properties;
(4)
Surrounding topography;
(5)
Surrounding tree coverage and foliage;
(6)
Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
(7)
Proposed ingress and egress; and
D.
Availability of suitable existing towers or other structures. No new tower or antenna shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Board of Adjustment that no existing tower, antenna site, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's proposed tower or antenna. Evidence submitted to demonstrate that no existing tower, antenna site, or structure can accommodate the applicant's proposed tower or antenna may consist of any of the following:
(1)
No existing towers, antenna site or structures are located within the geographic area required to meet the applicant's engineering requirements.
(2)
Existing towers, antenna sites or structures are not of sufficient height to meet the applicant's engineering requirements.
(3)
Existing towers, antenna sites or structures do not have sufficient structural strength to support the applicant's proposed tower or antennas and related equipment.
(4)
The applicant's proposed tower or antenna would cause electromagnetic interference with the antennas on the existing towers, antenna sites or structures, or the antennas on the existing towers or structures would cause interference with the applicant's proposed tower or antenna.
(5)
The fees, costs or contractual provisions required by the owner in order to share an existing tower, antenna site or structure, or to adapt an existing tower, antenna site or structure for sharing, are unreasonable. Costs exceeding new tower or antenna development are presumed to be unreasonable, and a cost comparison shall be admissible evidence of same.
(6)
The applicant demonstrates that there are significant other limiting factors that render existing towers, antenna sites and structures unsuitable.
(7)
Applicant shall have the affirmative obligation of proving that it has attempted to enter into a contract with the owners of the existing towers, antenna sites and structures:
(a)
This obligation shall include copies of all correspondence as to rates, cost of contributions, etc.
(b)
Copies of rejection of the offers propounded on the applicant by the owners of the existing structures, antenna sites and/or towers.
(c)
Written cost proposals indicating actual quoted figures required by the owner of the existing structures, antenna sites and/or towers.
(d)
A detailed cost analysis indicating the cost to the applicant to construct new tower, antennas and/or structure.
(8)
The applicant shall further demonstrate that an alternative technology that does not require the use of towers, antennas or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.
E.
Setbacks. The following setback requirements shall apply to all new towers for which a use variance is required; provided, however, that the Edgewater Zoning Board of Adjustment may reduce the standard setback requirements in any industrial or commercial zoning district if the goals of this article would be better served thereby:
F.
Security fencing. Towers shall be enclosed by security fencing not less than eight feet in height and shall be slatted and equipped with an appropriate anticlimbing device; provided, however, that the Zoning Board of Adjustment may grant a variance of such requirements as it deems appropriate.
G.
Landscaping. The following requirements shall govern the landscaping surrounding the towers for which a use variance is required; provided, however, that the Zoning Board of Adjustment may grant variance of such requirements if the goals of this article would be better served thereby.
(1)
Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from adjacent property. The standard buffer shall consist of a landscaped strip at least four feet wide and 12 feet high outside the perimeter of the compound.
(2)
Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible.
§ 240-174 Bulk standards for buildings and other equipment storage.
A.
Antennas mounted on structures or rooftops. The equipment cabinet or structure used in association with an antenna facility shall comply with the following:
(1)
The cabinet or structure shall not contain more than 200 square feet of gross floor area or be more than 15 feet in height. In addition, for buildings and structures which are less than 60 feet in height, the related unmanned equipment structure, if over 150 square feet of gross floor area or 12 feet in height, shall be located on the ground and shall not be located on the roof of the structure.
(2)
If the equipment structure is located on the roof of the building, then the area of the equipment structure and other equipment and structures shall not occupy more than 15% of the roof area.
(3)
Equipment storage buildings or cabinets shall comply with all applicable building codes.
(4)
Equipment storage buildings or cabinets shall be sufficiently insulated so that any noise generated from the equipment shall not exceed 50 decibels at the property line.
B.
Antennas located on towers. The related unmanned equipment structure shall not contain more than 200 square feet of gross floor area or be more than 15 feet in height and shall be located in accordance with the minimum yard requirements of the zoning district in which located.
§ 240-175 Letter of intent.
A letter of intent shall be provided by all applicants seeking approval to construct a wireless communication tower, committing the tower owner and its successors to allow the shared use of the tower if additional users agree in writing to meet reasonable terms and conditions for shared use, and that the tower owner acknowledges and agrees that its successors and/or individual users shall be bound and will conform to the requirements of this article, as applicable.
§ 240-176 Removal of abandoned antennas and towers.
Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove same within 90 days of receipt of notice from the Edgewater Building Department notifying the owner of such abandonment. If such antenna or tower is not removed within said ninety-day period, the Mayor and Council may order the removal of such antenna or tower at the owner's expense, and lien the property for the costs associated therewith, inclusive of professional fees. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower.
§ 240-177 Nonconforming uses.
A.
Preexisting towers. Preexisting towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall be performed in compliance with the requirements of this article.
B.
Rebuilding damaged or destroyed nonconforming towers or antennas. Nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain administrative approval or a conditional use permit. The type, height and location of the tower on site shall be of the identical type and intensity as the original facility. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in § 240-176.
§ 240-178 Approvals; compliance with laws.
The applicant's use of the premises is contingent upon its obtaining all certificates, permits, zoning and other approvals that may be required by any federal, state or local authority. The applicant shall erect, maintain and operate its antenna facilities in accordance with site standards, statutes, ordinances, rules and regulations now in effect or that may be issued hereafter by the Federal Communications Commission or any other governing bodies. Should any conflict arise between local zoning ordinances and rules or regulations promulgated by the FCC, the FCC rules and regulations shall govern.
§ 240-179 Fees.
A.
All wireless telecommunications towers and antenna facilities within the Borough of Edgewater which are used to provide any telecommunications services for a fee are required to be registered by the owner of the tower or antenna facility with the Borough. The registration forms shall be provided by the Edgewater Building Department. A fee of $250, plus $1 for each foot of tower or antenna height of the tallest antenna, shall be charged for the registration.
B.
Each owner shall inform the Borough within 60 days of any changes to the information set forth in the registration form.
C.
The registration of all wireless telecommunications towers and antennas facilities must be renewed on an annual basis and no later than January 31 of each year. The registration form must be accompanied by the fee to be accepted. The tower/antenna owner shall submit the registration form and fee to the Borough Building Department for review and processing.
D.
A late fee of $25 shall be charged for each month that the registration and accompanying fee is not received by the Borough.
E.
An applicant who co-locates on an existing tower or antenna facility shall pay a reduced renewal registration fee of $100. The registration fee of the owner of the tower or antennas facility on which another provider co-locates shall be reduced to $150, said reduction shall commence in the year following the co-location.
§ 240-180 Applicable laws.
The applicant shall, at its expense, comply with all present and future federal, state and local laws, ordinances, rules and regulations (including laws and ordinances relating to health, radio-frequency emissions, other radiation and safety) in connection with the use, operation, maintenance, construction and/or installation of the antenna facilities and/or the premises. The municipality agrees to reasonably cooperate with the applicant in obtaining, at the applicant's expense (including the municipality's reasonable attorney and administrative fees), any federal licenses and permits required for or substantially required by the applicant's use of the premises.
§ 240-181 Enforcement; hold harmless; violations and penalties.
A.
The provisions of this article will be enforced by the Borough Zoning Officer and Borough Construction Official, as appropriate.
B.
The owner of any tower or antenna facility shall indemnify and hold the Borough harmless against any and all claims, suits, cause of action or judgments arising from any injury, including death or damage, caused by the construction and operation of the tower or antenna facility.
C.
Any person, firm, or corporation who violates any of the provisions of this article, or any amendment or supplement thereof, shall be deemed guilty of a violation and, upon conviction thereof in a court of competent jurisdiction, shall be fined not more than $250. Each and every day during which such violation, illegal location, erection, construction, reconstruction, enlargement, change, maintenance or use continues shall be deemed a separate offense.