Montclair City Zoning Code
ARTICLE II
General Use Regulations and Conditional Uses
§ 347-7 Uses to conform to zone regulations.
[Added 7-29-1980 by Ord. No. 80-44]
No building shall be erected or altered and no land shall be used for any purpose other than a purpose permitted in the zone in which such building or land is located. No building or part of a building shall be erected or altered, except in conformity with the regulations herein prescribed for the zone in which such building is located.
§ 347-7.1 Temporary uses and structures.
[Added 10-4-2011 by Ord. No. O-11-51]
A.
Christmas trees. The Zoning Officer may issue a zoning permit to any business or nonprofit organization for the sale of Christmas trees and/or wreaths under the following conditions:
(1)
The location of such sale shall occur in a commercial zone and shall be limited to six weeks, including any time necessary to set up the sales area.
(2)
The business or nonprofit organization shall provide the Zoning Officer with a sketch indicating the location on the property where the sale is to be conducted and must show any other ancillary outdoor activity on the property that will be held in conjunction with the sale.
(3)
In the event electricity or some other power source is needed in conjunction with the sale, the Zoning Officer shall be informed of this fact, and the nonprofit organization must apply to the Construction Code Official for an appropriate permit prior to the installation of an electrical supply or other power source.
(4)
The Zoning Officer is empowered to impose any reasonable conditions on the issuance of the permit that are consistent with protecting the public health, safety and welfare, including but not limited to restricting the location, duration of the sale, ingress and egress to the premises, traffic patterns and flow on the property.
B.
Vestibules and storm enclosures. The Zoning Officer may issue a zoning permit for the temporary installation of vestibules and storm enclosures within the public right-of-way under the following conditions:
[Amended 1-19-2016 by Ord. No. O-15-043]
(1)
Vestibules and storm enclosures shall not be erected for a period of time exceeding six months in any one year.
(2)
Vestibules and storm enclosures shall not encroach more than three feet nor more than 1/4 the width of the sidewalk beyond the street lot line to maintain a four-foot pedestrian passageway unobstructed by trees, light poles, trash receptacles, parking meter posts, planters and similar structures.
(3)
Temporary entrance awnings shall be erected with a minimum clearance of seven feet to the lowest portion of the hood or awning where supported on removable steel or other approved noncombustible support.
(4)
Vestibules and storm enclosures are only permitted to cover the public entrance doors for eating and drinking establishments.
(5)
Applicants are solely responsible to design doors and vestibules that comply with American with Disabilities Act and Uniform Construction Code regulations.
(6)
No permit shall be issued unless the applicant has posted in advance a certificate of insurance listing the Township as an additional insured.
§ 347-8 Accessory dwelling units.
[Amended 7-29-1980 by Ord. No. 80-44; 2-21-2023 by Ord. No. O-22-27; 4-22-2025 by Ord. No. O-25-10; 8-12-2025 by Ord. No. O-25-29]
A.
Purpose and intent. The Montclair Township Council finds and declares that the purpose of this section is to:
(1)
Provide citizens with the opportunity to retain their homes, age in place, and create adaptive living environments for people living with disabilities.
(2)
Increase the supply of attainable housing within developed properties while putting minimal pressure on Township services such as schools and infrastructure.
(3)
Integrate these housing units, subject to the terms described herein, within existing neighborhoods, respecting the character of the neighborhood.
(4)
Provide flexible housing options for residents, in keeping with the goals of the Master Plan, that respond to changing family needs, smaller households, and increasing housing costs.
(5)
Codify the requirements and process to ensure that existing accessory dwelling units are legal and meet the Township's safety codes.
B. ACCESSORY DWELLING UNIT (ADU) LIVING AREA PRIMARY DWELLING UNIT ZONING OFFICER
Definitions. As used in this section, the following terms shall have the meanings indicated:
A residential living unit on the same parcel as a one- or two-family dwelling with complete independent living facilities, including a kitchen and bathroom, for one or more persons. It may take various forms: a detached unit; a unit that is part of an accessory structure, such as a detached garage; or a unit that is part of an expanded or remodeled dwelling.
The interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure.
The original living unit in a one-family home and the larger living unit in a two-family home. The permissible size of an ADU will be based on the size of the primary dwelling unit.
The local official who is responsible for processing and approving or denying applications to develop ADUs.
C.
Where permitted. ADUs shall be a permitted accessory use on lots containing one- and two-family dwellings in the R-O, R-O(a), R-1 and R-2 Zone Districts.
D.
Standards. One ADU shall be permitted on a lot located in the R-O, R-O(a) R-1 and R-2 Zones in the Township. The Zoning Officer must find that the following conditions have been met:
(1)
Either the ADU or the primary dwelling unit shall be the primary domicile of the person(s) who or entity that own(s) the property. In the case of a two-family home, the primary domicile of the owner must be one of the dwelling units or the ADU.
(2)
(Reserved)
(3)
In no case shall the ADU's living area be more than 40% of that of the habitable area of the principal building, up to a maximum of 800 square feet, nor less than 300 square feet, and no more than three rooms, excluding the kitchen and bathroom.
(4)
Detached ADUs shall comply with the requirements for accessory structures in the applicable zone district and the requirements of Montclair Code § 347-22, except that the length or width for detached accessory dwelling units shall not exceed 40 feet in any one direction.
(5)
All ADUs shall comply with existing Township ordinances, zoning ordinances, and the New Jersey Uniform Construction Code (UCC).
(6)
There shall be no more than one ADU per lot.
(7)
The ADU shall be used only for residential purposes for one family. ("Family" is defined in § 347-2, Definition of terms.)
(9)
For new construction, adherence to the New Jersey Barrier Free Subcode is required.
(10)
An ADU that is attached to the principal one- or two-family dwelling shall utilize complementary exterior materials and colors as the principal single-family dwelling. The ADU shall harmonize with the architectural and landscaping character of its neighborhood.
(11)
With respect to new construction, the external entrance to the ADU shall not face the same street as the external entrance to the principal dwelling unit if such external entrance to the ADU is visible from the street.
(12)
A minimum rental term of six months is required for tenants.
(13)
At least one off-street parking space shall be provided for an ADU.
(14)
No window in an ADU that faces another residential property may be located within six feet of a property line.
E.
Procedures.
(1)
A new ADU may not be created nor can an existing ADU be legalized until the Zoning Officer determines that it meets the following requirements for designation:
(a)
An application for a zoning permit on a form prescribed by the Montclair Township Department of Planning and Community Development is submitted with pertinent data, such as the names and addresses of the owners and an identification, by street number and lot and block designation, of the residence involved.
(b)
For detached ADUs and ADUs that involve construction of an addition, the application shall be accompanied by a recent survey of the property, prepared by a licensed engineer or land surveyor, depicting the boundaries of the lot and all existing structures and improvements on the property. Older surveys are acceptable for attached ADUs.
(c)
The application shall also be accompanied by a proposed floor plan which shall be drawn by a licensed architect or engineer, if reasonably required by the Construction Official, depicting all proposed interior and exterior changes to the residence and ADU, including the relation of the ADU to the primary dwelling unit, the location of any proposed additional exterior doors, and any proposed modifications to the existing sanitary disposal system or water lines. All proposed changes and/or additions must comply with the Uniform Construction Code (UCC).
(d)
Within 10 business days after the application for an ADU is deemed complete, the Zoning Officer shall schedule a meeting with the applicant. Within 10 business days from the meeting with the applicant, the Zoning Officer shall render a final decision and notify the applicant by regular mail and email whether the proposed ADU may be deemed permitted.
(2)
All ADUs must file a deed notice with Essex County clearly indicating the presence of the ADU and the limitations of its use. A certificate of occupancy cannot be issued until the deed notice is filed.
(3)
If the Zoning Officer approves the proposed ADU, the applicant must commence construction within two years of the Zoning Officer's determination or the Zoning Officer may revoke the permit. An applicant unable to commence construction of an ADU within two years of the Zoning Officer's determination may appeal to the Zoning Officer for an extension of time for one year for good cause shown.
(4)
If the Zoning Officer denies the proposed ADU, the applicant may appeal the decision of the Zoning Officer to the Township Zoning Board of Adjustment within 45 days of the receipt of the denial from the Zoning Officer. Thereafter, the appeal shall be deemed untimely.
(5)
Construction of the ADU.
(a)
The applicant constructing an approved ADU must comply with all existing procedures established by the Building Office and the Department of Planning and Community Development regarding applications, permits, fees, and inspections, except that the applicant must schedule a final inspection with the Construction Official and the Fire Official within 20 days of when construction of the ADU is complete. A copy of the lease must be provided if the ADU is being rented.
(b)
The Construction Official and Fire Official shall conduct a physical inspection of the primary dwelling unit and the ADU to determine whether the construction complies with the terms on which the approval was given. If the Construction Official and Fire Official determine that the construction complies with Township ordinances and the Uniform Construction Code, (s)he shall issue a certificate of occupancy for the ADU upon the payment of a fee based on the current fee schedule for such issuance. If the construction does not comply with the terms of the approval, within 48 hours the applicant shall be sent written notification describing the noncompliance. The applicant may cure the noncompliant items and submit proof of compliance to the Construction Official and the Fire Official for reconsideration.
(6)
Owner's annual affidavit of continued compliance.
(a)
On or before January 1 of every year, starting with the first January following the issuance of the initial certificate of occupancy for an ADU, the owner to whom the certificate of occupancy was issued shall file an affidavit in the form prescribed by the Montclair Township Department of Planning and Community Development stating that there has been no change in the conditions upon which the ADU was originally approved.
(b)
If the owner fails to file the affidavit as herein required, the certificate of occupancy issued for the ADU shall automatically be revoked within 30 days, and the Construction Official shall so notify the owner and the tenant, if any, in writing, of the revocation.
(c)
Any continued occupancy of the ADU following notice of revocation of the certificate of occupancy shall subject the owner to a fine of $250 for the first 30 days in which the ADU continues to be occupied. Thereafter, the fine shall be up to $100 per day for each day that the ADU continues to be occupied, subject to a maximum of $3,000 for each subsequent thirty-day period following the first month.
(d)
The certificate of occupancy for the ADU may be reinstated once the required affidavit is filed and approved by the Department of Planning and Community Development.
(7)
Transfer of the property lot.
(a)
If the owner of the property in which an ADU is permitted transfers title to the property, the new owner shall apply, as herein, for a certificate of continued use of the ADU upon the terms and conditions contained herein. Such new application shall be filed within 60 days of the transfer of the property.
(b)
Upon the Construction Official determining that there have been no changes in condition, the Construction Official shall issue a new certificate of continued use for the ADU upon the payment of a fee based on the current fee schedule for such issuance.
(c)
An ADU may not be sold independent of the primary residence.
(d)
When listing the property for sale with an approved ADU, the owner of the property shall disclose to all prospective buyers that the property contains an approved ADU. The Township shall confirm same on the certificate of continued use.
(8)
Inspections. Before the certificate of occupancy for the ADU is granted, the Construction Official and Fire Official shall have the right to conduct inspections to determine compliance with the provisions of this section.
§ 347-8.2 Group homes.
[Added 3-4-2014 by Ord. No. O-14-007]
Group homes, as defined in § 347-2, are prohibited in all single-family residential zone districts.
§ 347-9 Use of carriage houses.
[Amended 6-24-1980 by Ord. No. 80-41; 6-9-1981 by Ord. No. 81-31]
The occupancy and continued use of carriage houses in all residential zones as one-family dwellings prior to January 23, 1978, shall be permitted to be continued. The establishment or reestablishment of carriage houses as single-family residences shall be permitted in any residential zone as a conditional use subject to the following:
A.
The carriage house is on the same property as the original principal dwelling.
B.
The property has a minimum area of 20,000 square feet and a minimum width of 150 feet.
C.
Residential use of the carriage house shall not be permitted on the first floor.
D.
The minimum habitable floor area for conversions shall be 500 square feet.
E.
The gross floor area of the carriage house shall not be expanded, except that dormers may be added to provide additional light, ventilation and access.
F.
At least four on-site parking spaces, two of which shall be enclosed, shall be available for use by occupants of the carriage house and principal dwelling.
§ 347-10 Trailers in residential zones.
A.
An automobile trailer or boat designed to be used for human habitation may be stored or parked on a permanent basis in any residence or residence and office zone, provided that such a trailer or boat is parked or stored inside a building and that in no case shall such trailer or boat be used for living quarters, storage or any other use. In the event of destruction of a residential building by fire or any other act of God, the restrictions of this section may be waived by the governing body of the Township for a period not to exceed four months.
B.
An automobile trailer, such as utility or rental cargo trailer of the type and size normally towed by passenger cars, or a similar type of vehicle for which the gross weight and the load (as determined by the New Jersey State Motor Vehicle Division for establishing a license fee) is not in excess of 2,000 pounds, or a boat not exceeding 18 feet in length, with or without its accompanying trailer, is deemed to be an accessory use and may be kept in open storage on a lot in a residence or residence and office zone, subject to the following conditions:
(1)
Such a vehicle or boat may only be stored in the rear yard of a lot.
(2)
The owner of the vehicle or boat must either reside as a tenant on the property or be the owner-occupant of the property on which such vehicle or boat is stored.
(3)
There must be a principal building on the lot on which any such vehicle or boat is stored.
(4)
Only one such vehicle or boat shall be permitted to be stored in the open on any lot; provided, however, a boat on its trailer shall be considered as one unit.
(5)
The trailer or boat shall not be connected to any utilities or be serviced (other than for maintenance purposes) with gas, water, electricity or sewerage (including septic tank), and under no circumstances shall either be used for living purposes, storage purposes or any other use.
§ 347-11 Use of church premises.
Use of church premises is subject to the following:
A.
A church may maintain on its premises such activities affiliated with said church as are reasonably related to traditional church use, such as but not limited to worship services, religious education programs, church social activities and such similar organizations or functions, all of which are hereby expressly deemed to be accessory uses.
B.
A church may also maintain on its premises the following nonaccessory uses, provided that notice in writing is sent to the Construction Code Official within 30 days prior to commencement of such use, and further provided that they do not otherwise violate use regulations:
(1)
Schools for teaching of the arts, such as music, dancing, sculpture, painting or similar cultural form.
(2)
Child day-care centers in compliance with applicable local and state regulations.
(3)
Performing arts, including theater, music and dance.
(4)
Such other similar civic or community-oriented activities which are conducted not-for-profit, provided that they comply with applicable local and state regulations.
§ 347-12 Private and public schools as conditional use.
[Amended 6-24-1980 by Ord. No. 80-41; 4-3-1990 by Ord. No. 90-18; 1-27-1998 by Ord. No. 98-1; 3-14-2006 by Ord. No. 05-73]
A.
Private and public schools of elementary and high school grade not operated for profit, schools for children with special needs which are operated for profit and customary accessory uses are permitted in the R-O, R-O(a), R-1, R-2, R-3, OR-3, R-4, OR-4 and P Zones, as a conditional use, subject to the following conditions:
(1)
The aggregate site area of the school, in addition to the area of the site covered by buildings, shall not be less than 250 square feet per student.
(2)
The total area of building space used for classrooms, exclusive of auditorium, gymnasium or similar areas for assembly purposes, shall have an average of not less than 28 square feet per student.
(3)
The property on which the school is located shall have a minimum lot size of 1.75 acres and a minimum street frontage of 300 feet.
(4)
The lot shall have frontage on a street having a paved width of at least 35 feet.
(5)
No building on the property shall exceed the height limitations of the zoning district.
(6)
There shall be two separate driveways, each providing ingress and egress to the school, and the driveways shall be separated by at least 150 feet. No driveway shall open into a street or road within 200 feet of an intersection of such street or road with another street or road.
(7)
All buildings shall have a minimum side yard setback of 50 feet, a minimum rear yard setback of 100 feet and a minimum front yard setback in compliance with the requirement of the zoning district.
(8)
All outdoor play areas shall be set back a minimum of 50 feet from any street or property line.
(9)
On-site parking shall be provided at the rate of one space for every full-time or full-time equivalent staff member or employee, and one space for every four students eligible to drive. Visitor parking shall be provided at the rate of two spaces per elementary and intermediate classroom.
(10)
The maximum permitted impervious surface coverage shall be 70%.
(11)
The sum of all areas covered by all principal and accessory buildings shall not exceed 25% of the area of the lot.
(12)
Parking areas and driveways shall be set back at least 15 feet from property lines, with the intervening areas landscaped to provide an effective visual screen at the time of planting.
(13)
A parking study shall be submitted pursuant to Subsection B below which shall conclude that the roadways and intersections leading to and from the site are capable of handling the expected traffic demands generated by the school. In assessing the capacity of such roadways and intersections to handle the expected traffic demands to be generated by the school, the traffic report shall apply "Level of Service C," as defined in the "Highway Capacity Manual" published by the Transportation Research Board, Washington, D.C.
B.
Site plan approval shall be required for all schools subject to this chapter, which approval may be granted upon review of a completed site plan, including (unless waived by the Planning Board or Board of Adjustment) a traffic study prepared by a licensed professional engineer which assesses existing traffic conditions, projected traffic volumes and distribution patterns, a landscaping plan providing for adequate screening and buffers, a parking plan with designated loading and unloading areas, and an adequate on-site play area for students under the age of 10. If the Planning Board or Board of Adjustment recommends improvements in the public right-of-way, Township Council approval of the recommendations shall be required and the cost of such improvements shall be paid by the property owner on a pro rata basis in accordance with N.J.S.A. 40:55D-42 and applicable Township ordinances.
§ 347-13 Vending machines in residential zones. [1]
Vending machines may be installed in residential and residential-office zones only under one of the following conditions:
A.
If located wholly within and accessible only from within a building for the sole use of residents and occupants of the building.
B.
Upon explicit authorization by the Planning Board to provide a service but not to vend a product or an amusement, provided that the Planning Board shall find that the installation is desirable for the convenience of the community and that it meets all requirements for vending machines in C Zones.
C.
Within any nonconforming commercial or industrial building, provided that they meet all requirements for vending machines in C Zones.
§ 347-14 Vending machines in commercial zones.
Vending machines may be installed in the N-C, C-1 and C-2 Zones under the following conditions:
A.
Within a building, provided that all times when an attendant is not present said building shall be lighted from within in such manner that from the nearest street there is a clear and uninterrupted view of the entire interior portion thereof which is open and accessible to the public.
B.
Other than within a building, only provided that the following requirements are met:
(1)
All parts of the installation, including any booth or housing, shall be so located that no operation, maintenance or servicing will take place on or from any public street or municipal parking lot or plaza; provided, however, that the Township Engineer may waive this requirement in any case in which he or she finds that the location is such that no interference will be caused to either street or pedestrian traffic.
(2)
No part of the installation is closer to the sidewalk or street than the average distance therefrom of buildings or structures on the same side of the street within 200 feet of such installation or construction, including buildings and structures on the property affected.
(3)
The approach to the machine is paved and unobstructed and occupies the entire area from the front of the installation to any street, parking lot or other public place from which the installation has access. If the front of an installation does not face a street, parking lot or other public place, there shall be an unobstructed space not less than 25 feet in depth on the same lot between the front face of the installation and the nearest property line, building or structure which is opposite the face of the installation, which open space shall extend without interruption from the point of such installation most remote from the street, parking lot or other public place from which access is had to said installation to said street, parking lot or other public place.
(4)
The height of the machine or booth in which it is installed is not in excess of 10 feet and there are end walls and a back wall extending the full height of the machine and a complete roof.
(5)
The height of the machine is substantially the same as the height of every other vending machine in any group of machines of which the installation is or will be a part, and the front face of the machine forms a generally continuous surface with the fronts of any such other machines.
(6)
Adequate lighting is mounted in the lower surface of any overhanging shelter and all lighting is so arranged that the source of illumination is not visible beyond 10 feet from the installation at a height greater than seven feet from the ground.
(7)
Adequate lighting is provided between the installation and the street, parking lot or other public place from which public access is had to such installation.
§ 347-15 Motor vehicle rental at service stations.
[Amended 10-1-1991 by Ord. No. 91-44]
A.
The Planning Board may grant a conditional use so as to permit the rental of automobiles, vans and trailers, hereinafter referred to as "rental units," on the premises of a motor vehicle service station if, after a public hearing pursuant to Chapter 202, Land Use Procedures, the Board finds that the following conditions are met:
(1)
The area of the lot of the motor vehicle service station is no less than 10,000 square feet.
(2)
The area proposed for outdoor parking and storage of rental units will not exceed 10% of the lot not covered by buildings and other structures or include any area restricted to another use.
(3)
The parking area or areas for rental units will be located on the lot in a way that will not create dangerous impediments to traffic visibility or result in interference with normal traffic flow onto, within or from the lot.
(4)
Rental units shall not be parked in any portion of the lot set aside for required off-street parking.
(5)
Parking or storage space for rental units shall be on a hard-surface area marked by clearly visible boundaries, and rental units parked or stored outdoors shall be within such boundaries except when being serviced.
(6)
The application, if granted, shall not have any substantial adverse effect upon the neighborhood.
B.
For the purpose of this chapter, rental units shall be limited to:
(1)
Utility trailers of the type and size normally towed by passenger cars, or similar type of vehicle for which the gross weight and the load (as determined by the New Jersey State Motor Vehicle Division for establishment of a license fee is not in excess of 2,000 pounds.
(2)
Automotive passenger vehicles.
(3)
Vehicles normally referred to as a "van" or "pickup," the rated maximum gross vehicle weight of which does not exceed 8,000 pounds.
§ 347-16 Soil removal.
No earth, rock, gravel or topsoil shall be removed from any lands in any zone without the permission of the Planning Board, except as hereinafter provided:
A.
Earth, rock, gravel and topsoil may be moved by the owner or occupant of land, or adjoining land in common ownership, to another part of the same land owned or occupied by him or her.
B.
The owner or developer of a subdivision or development, the map of which has been approved by the Planning Board, shall not be prohibited by this section from removing any earth, rock, gravel and topsoil from the right-of-way of a proposed street or road shown on such map in the construction or building of such street or road.
C.
In the construction of any structure or building, the owner or builder thereof shall not be prohibited by this section from removing earth, rock, gravel and topsoil coming from the excavations made for such structure or building and which earth, rock, gravel and topsoil the Construction Official deems surplus materials and not necessary for such structure or building or the lands whereon erected.
§ 347-17 Heliports and helistops prohibited.
A.
Nothing in this chapter shall permit the establishment or maintenance of a heliport or helistop as either a principal or an accessory use in any zone district within the Township of Montclair.
B.
A heliport is an area used by helicopters or by other steep-gradient aircraft, which area includes passenger and cargo facilities, maintenance and overhaul, fueling service, storage space, tie-down space, hangars and other accessory buildings and open space. A helistop is an area on a roof or on the ground used by helicopters or steep-gradient aircraft for the purpose of picking up or discharging passengers or cargo, but not including fuel service, maintenance or overhaul.
§ 347-17.1 Telecommunications.
[Added 7-7-1998 by Ord. No. 98-27]
A.
Purpose.
(1)
Advances in wireless telecommunications technology have resulted in a new generation of telecommunication services. These new services transmit electromagnetic waves of such a frequency and power that will likely require additional antenna locations. These antennas may be located on buildings, water towers and other similar structures. This requires that the Township of Montclair regulate these wireless communication system facilities in a different manner than conventional television and radio transmission towers which are able to transmit their signals at much greater distances.
(2)
The intent of this section is to comply with all applicable regulations of the Federal Telecommunications Act of 1996 and to provide regulation for the establishment and or expansion of wireless telecommunication services within the Township of Montclair while protecting neighborhoods and minimizing the adverse visual and operational effects of wireless telecommunications facilities through careful design, siting and screening. More specifically, this regulation has been developed in order to:
(a)
Encourage the utilization of existing structures, such as tall buildings, bell towers and municipal structures, to mount and install wireless telecommunications antennae and equipment.
(b)
Minimize the location of facilities in visually sensitive areas.
(c)
Encourage creative design measures to camouflage facilities.
(d)
Protect historic and residential areas from potential adverse impacts of communication equipment.
B. ANTENNA PUBLIC VIEW WIRELESS TELECOMMUNICATIONS ANTENNAS AND EQUIPMENT WIRELESS TELECOMMUNICATION SERVICES WIRELESS TELECOMMUNICATION SITE
Definitions. As used in this section, the following terms shall have the meanings indicated.
A device used to receive or transmit electromagnetic waves. Examples include but are not limited to whip antennas, panel antennas and dish antennas.
Visible from a public thoroughfare, public lands or buildings, public pathways, trails or bicycle paths.
Structures used for the delivery of low-power wireless radio communication through a network
A licensed wireless telecommunication service, including but not limited to cellular, personal communication services (PCS), specialized mobilized radio (SMR), enhanced specialized mobilized radio (ESMR), paging and similar services that are marketed to the general public.
A facility operated by a licensed wireless telecommunication service provider which consists of the equipment and structures involved in receiving or transmitting electromagnetic waves associated with wireless telecommunication services.
C.
Location preferences.
(1)
(2)
Exemptions. Equipment used for the following purposes is hereby specifically exempted from the requirements of this section. However, all other applicable sections do apply:
(3)
Application process.
(a)
Municipal structures. The installation and operation of wireless telecommunications antennas and equipment mounted on municipal structures shall only require administrative review from the Planning Department. Approval shall be given subject to the following conditions:
[1]
The applicant shall provide a report prepared by a qualified and licensed professional engineer indicating the existing structure or building's structural integrity to accept the antenna and equipment and the proposed method of affixing the antenna to the structure. Complete details of all fixtures and couplings and the precise points of attachment shall be indicated.
[2]
All wireless telecommunications equipment shall be painted or otherwise colored to minimize the equipment's visible impact.
[3]
All accompanying equipment buildings or boxes shall be screened from view in the public right-of-way.
[4]
All appropriate building permits are received.
[5]
All appropriate lease and sublease agreements have been received and signed by the Township Manager or Mayor.
(4)
C-1, C-2 and NC Zones. The installation and operation of wireless telecommunications antennas and equipment shall be a conditional use in the C-1, C-2 and NC Zones subject to the following conditions:
(a)
Documentary evidence shall be presented regarding the need for a additional wireless telecommunications antennas in the Township of Montclair. This information shall identify the telecommunications network layout and coverage areas to demonstrate such need within the Township.
(b)
All wireless telecommunications equipment shall be painted or otherwise colored to minimize the equipment's visible impact.
(c)
The height of the antenna shall not exceed the top of the parapet wall, penthouse or chimney to which it is attached.
[Amended 11-26-2002 by Ord. No. 02-52]
(d)
All accompanying equipment buildings or boxes shall be screened from the public view and shall not exceed the maximum height for a principal building in the zone.
[Amended 4-3-2012 by Ord. No. O-12-23]
(5)
RO, R1, R2, R3, R4, OR3 and OR4 Zones. The installation and operation of wireless telecommunications antennas and equipment shall be a conditional use in the RO, R1, R2, R3, R4, OR3 and OR4 Zones, subject to the following conditions:
(a)
The building or structure which the wireless telecommunications antenna and equipment is mounted on measures in height a minimum of 60 feet, such as a bell tower, apartment building or institutional facilities.
(b)
Documentary evidence, from a licensed engineer, shall be presented regarding the need for a additional antennas in the Township of Montclair. This information shall identify the telecommunications network layout and coverage areas to demonstrate such need within the Township.
(c)
All wireless telecommunications equipment shall be painted or otherwise colored or camouflaged to minimize the equipment's visible impact.
(d)
The height of the antenna shall not exceed the top of the parapet wall, penthouse or chimney to which it is attached.
[Amended 11-26-2002 by Ord. No. 02-52]
(e)
No changes shall be made to the height of such structure or significantly alter its appearance.
(f)
No panel antenna shall exceed 72 inches in height and 24 inches in width.
(g)
No dish antenna shall exceed three feet in diameter.
(h)
All accompanying equipment buildings or boxes shall be screened from the public view and shall not exceed the maximum height for a principal building in the zone.
[Amended 4-3-2012 by Ord. No. O-12-23]
D.
Inspection, abandonment and penalties.
(1)
Every year after approval, the applicant shall provide a report prepared by a qualified and licensed professional engineer indicating the safety and structural integrity of the installed telecommunications equipment and structure which they are mounted on.
(2)
Wireless telecommunication equipment not in use for 12 consecutive months shall be removed by the building owner. This removal shall occur within 90 days of the end of such twelve-month period. Upon removal the site shall be restored to its previous appearance and where appropriate revegetated to blend with the surrounding area.
(3)
A copy of the relevant portions of a signed lease which requires the applicant to remove the wireless telecommunications antenna and equipment and associated facilities upon cessation of operations at the site shall be submitted at the time of the building permit application. A copy of relevant portions of any lease renewals shall be provided to the Township Planning Department thereafter.
(4)
In the event that wireless telecommunications antennas and equipment are not removed within the abandonment time frame specified above, the wireless telecommunications antennas and equipment may be removed by the Township and the costs of removal assessed against the property in addition to other penalties proscribed by the chapter for violations of the provision of this article.
§ 347-17.2 Cannabis establishments.
[Added 8-10-2021 by Ord. No. O-21-18]
Cannabis establishments shall be permitted, pursuant to this chapter, only if the requirements of Montclair Code Chapter 110, Cannabis, and N.J.S.A. 40:48I-1 et seq., and any other applicable State of New Jersey statutes and regulations, are fully complied with.
B.
No cannabis establishment shall be housed in a vehicle or any movable or mobile structure.
C.
Buffer zone. The primary entrance of a cannabis establishment may not be closer than 250 feet from the primary entrance of the nearest pre-existing public or private K-12 school or child-care center licensed by the State of New Jersey. The buffer zone distance shall be measured in a straight line from the geometric center of the primary entrance of the cannabis establishment to the geometric center of the primary entrance of the nearest pre-existing public or private K-12 school or child-care center licensed by the State of New Jersey, unless there is an impassable barrier within those 250 feet; in these cases, the buffer zone distance shall be measured along the center of the shortest publicly accessible pedestrian travel path.
D.
Prohibited uses. Except as expressly permitted by this chapter and Chapter 110 of the Montclair Code, entitled Cannabis, as well as any other activity involved in the cultivation, manufacture, processing, testing, dispensation, distribution and/or sale of cannabis, marijuana or cannabis products, are expressly prohibited as land uses or otherwise in the Township of Montclair.
§ 347-17.3 Small cell wireless facilities.
[Added 12-17-2024 by Ord. No. O-24-35]
A. ADMINISTRATIVE REVIEW ANTENNA APPLICABLE CODES APPLICANT APPLICATION CO-LOCATE or CO-LOCATION COMMUNICATIONS FACILITY COMMUNICATIONS SERVICE COMMUNICATIONS SERVICE PROVIDER COUNTY dBm DECORATIVE POLE DISTRIBUTED ANTENNA SYSTEM (DAS) ELIGIBLE FACILITIES REQUEST FCC HEIGHT LAWS MACROCELL ORDINARY MAINTENANCE AND REPAIR PERMIT or ROW PERMIT PERMITTEE PERSON PERSONAL WIRELESS SERVICE POLE PROVIDER PUBLIC RIGHT-OF-WAY REPLACE or REPLACEMENT SMALL CELL WIRELESS FACILITY SMART POLE STATE SUPPORT STRUCTURE SURROUNDING STREETSCAPE TOWER TOWNSHIP UTILITIES WIRELESS SERVICES
Definitions. Unless indicated otherwise in this chapter, the meanings of terms used herein shall be as follows:
Ministerial review of an application by the Director of Planning and Community Development and the Township Engineer to determine whether the issuance of an approval is in conformity with the applicable provisions of this chapter.
Communications equipment that transmits and/or receives electromagnetic radio frequency signals used in the provision of small cell wireless services. This definition does not apply to broadcast antennas, antennas designed for amateur radio use, or satellite dishes for residential or household purposes.
Uniform building, fire, safety, electrical, plumbing, or mechanical codes adopted by a recognized national code organization to the extent such codes have been adopted by the Township, including any amendments adopted by the Township, or otherwise are applicable in the jurisdiction.
Any individual, corporation, limited-liability company, general partnership, limited partnership, estate, trust, stock company, association of two or more persons having a joint common interest, or any other entity applying for a conditional use permit, site plan approval, variance, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more small cell wireless service facilities.
A written request on a form provided by the Township.
To install or mount a small cell wireless facility in the public right-of-way on an existing support structure, an existing tower, or on an existing pole to which a small cell wireless facility is attached at the time of the application.
Cable service, as defined in 47 U.S.C. § 522(6); information service, as defined in 47 U.S.C. § 153(24); or telecommunications service, as defined in 47 U.S.C. § 153(53).
A provider of communications services and includes a cable operator as defined in 47 U.S.C. § 522(5).
The County of Essex.
"dBm" stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks. Signal strengths are recorded in negative numbers and can range from approximately -30 dBm to -110 dBm. The closer the number is to zero, the stronger the cell signal.
A pole that is specially designed and placed for aesthetic purposes.
A network of spatially separated antenna nodes connected to a common source via a transport medium that provides personal wireless service within a geographic area.
Eligible facilities request as set forth in 47 CFR 1.6100, as that section may be amended from time to time.
The Federal Communications Commission of the United States.
When referring to a small cell wireless facility, the height shall mean the distance measured from the preexisting grade level to the highest point on the pole, facility, or structure, including, but not limited to, any accessory, fitting, fitment, extension, addition, add-on, antenna, whip antenna, lightning rod or other types of lightning-protection devices attached to the top of the structure.
Collectively, all federal, state, or local law, statute, common law, code, rule, regulation, order, or ordinance.
A cellular base station that typically sends and receives radio signals from large antennas. These include traditionally recognized cellular facilities which typically are installed at heights above 50 feet.
Inspections, testing and/or repair that maintain functional capacity, aesthetic, and structural integrity of a communications facility and/or the associated support structure, pole, or tower, that does not require blocking, damaging, or disturbing any portion of the public right-of-way.
A written authorization to install, at a specified location(s) in the public right-of-way, a communications facility, tower, or a pole to support a communications facility.
An applicant that has received a permit under this chapter.
An individual, corporation, limited-liability company, general partnership, limited partnership, estate, trust, stock company, association of two or more persons having a joint common interest, or other entity or organization, including a governmental entity.
Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services as defined in 47 U.S.C. § 332(c).
A legally constructed pole, such as a utility, lighting or similar pole made of wood, concrete, metal, or other material. A pole does not include a tower or support structure and does not include a pole or structure that supports electric transmission lines.
A communications service provider or a small cell wireless services provider and includes any person that owns and/or operates any communications facilities, small cell wireless facilities, poles built for the sole or primary purpose of supporting communications facilities or towers.
The area on, below, or above property that has been designated for use as or is used for a public roadway, highway, street, sidewalk, or similar purpose. This includes any public right-of-way held by the County of Essex where the Township has authority to install lights or construct, grade, curb, pave or repair sidewalks and curbs pursuant to N.J.S.A. 27:16-6. Pedestrian walkways as defined and regulated in Montclair Code § 301-17 are excluded from consideration for small cell wireless facilities.
In connection with an existing pole, support structure or tower, to replace (or the replacement of) same with a new structure, substantially similar in design, size, and scale to the existing structure and in conformance with this chapter and any other applicable regulations to address limitations of the existing structure to structurally support co-location of a communications facility.
A fixed cellular base station that sends and receives radio signals, and which is typically mounted upon poles or support structures at lower elevations than macrocell facilities, that includes poles, cabinets, towers, support structures, and antennas.
A decorative pole that conceals, disguises or camouflages one or more small cell wireless facility installation(s) and may include other features such as streetlighting, 911 call service access, public access wi-fi, public electronic signs, and surveillance cameras. A smart pole must allow for multiple occupants and allow space for municipal use for other services and/or equipment. Smart poles shall not have external latches, external hinges, or external cabling. The pole shall be made of an inherently rust-resistant material.
The State of New Jersey.
A structure in the public right-of-way other than a pole or a tower to which a small cell wireless facility is attached at the time of the application.
The visual elements of a street, including the road, adjoining buildings, street furniture, trees, and open spaces, etc., combine to form the street's character.
Any structure in the public right-of-way built for the sole or primary purpose of supporting a small cell wireless facility. A tower does not include a pole or a support structure.
The Township of Montclair.
Electric or communications facilities, exclusive of sewer, gas or water lines.
Any wireless services using licensed or unlicensed spectrum, whether at a fixed location or mobile, provided to the public.
B.
Where permitted.
(1)
In the C-1, C-2, C-3, NC, OR-3 and OR-4 Zone Districts and in redevelopment areas (R-A) where authorized by the redevelopment plan, small cell wireless facilities located in the public right-of-way are a permitted use and shall require site plan approval.
(2)
In the R-O, R-O(a), R-1, R-2, R-3 and R-4 Zone Districts, small cell wireless facilities are permitted as a conditional use subject to the following conditions:
(3)
Notice of any required public hearing must be given pursuant to the Municipal Land Use Law.[1] When a small cell wireless facility is proposed to be located in a right-of-way with no specific block and lot designation, notice shall be given to all property owners within 200 feet of the proposed location of the small cell wireless facility and to all property owners within 200 feet of the nearest block and lot to the location of the proposed small cell wireless facility. The notice shall accurately describe the types of facilities proposed.
[1]
Editor's Note: See N.J.S.A. 40:55d-1 et seq.
C.
Bulk requirements.
(1)
Height. The maximum height of the pole shall be 35 feet, including the antennas, or 110% of the height of poles in the surrounding streetscape, whichever is less.
(2)
Distance from curbline. All poles shall be at least 18 inches and no more than five feet from the curbline.
(3)
Distance from residence. All small cell wireless facilities shall be at least 50 feet from any residential dwelling.
(4)
Location. No pole shall be erected in the public right-of-way unless it:
(a)
Is replacing an existing pole; or
(b)
Is approved pursuant to this section by the Township; and
(c)
Is at least 200 linear feet from any other existing pole or proposed pole which is used to support a small cell wireless facility; and
(e)
Does not inhibit any existing sight triangles; and
(f)
Allows a continuous unobstructed area at least four feet in width for the public to pass and repass across the public right-of-way.
(g)
Small cell wireless facilities may be located on private property only when the use is nonresidential.
(5)
Poles.
(a)
Existing poles shall be used, when possible, for the placement of all small cell wireless facilities and shall minimize the number of new proposed poles in the public right-of-way to the fewest possible to meet the coverage and capacity requirements.
(b)
All poles located in the C-1 or C-3 Central Business Zone Districts shall be smart poles.
(c)
All poles located in the N-C or C-2 Zone Districts or in a federal, state or locally designated historic district shall be decorative poles to preserve the existing character and streetscape and minimize impact on surrounding properties.
(d)
All other poles shall be utility poles, light poles or decorative poles.
(6)
Antennas. Pole-mounted antennas are permitted on new and existing poles in accordance with the following requirements:
(a)
The maximum size of all antennas is three cubic feet in volume.
(b)
The total combined area of all antennas and equipment on a pole shall not exceed 28 cubic feet.
(c)
Antennas are finished and/or painted and otherwise camouflaged, in conformance with best available stealth technology methods, to blend in compatibly with the background and to minimize the visual impact on surrounding properties.
(d)
The antennas do not inhibit sight triangles.
(e)
The antennas allow adequate room for the public to pass and repass across the public right-of-way.
(7)
Equipment. Pole-mounted equipment are permitted on new and existing poles, provided that each pole-mounted equipment:
(a)
Equipment does not exceed 16 cubic feet in volume.
(b)
Equipment is finished and/or painted and otherwise camouflaged in conformance with best available stealth technology methods to blend in compatibly with its background and to minimize its visual impact on surrounding properties.
(c)
Equipment does not inhibit sight triangles.
(d)
Allows adequate room for the public to pass and repass across the public right-of-way.
(e)
All small cell wireless equipment associated with the pole or tower, including the small cell wireless equipment associated with the antenna and any preexisting equipment, shall not be more than 28 cubic feet in volume.
(f)
Ground-mounted equipment is used only to house equipment and other supplies in support of the small cell wireless facility. Public art on equipment is encouraged to screen ground-mounted equipment cabinets in commercial districts.
D.
Other requirements.
(1)
Underground utilities.
(a)
Unless approved by a board, whenever any existing electric utilities or communications facilities are located underground within a public right-of-way, the provider shall locate its communications facilities, with the exception of the antenna and its support structure, underground at its own expense.
(b)
For facilities or equipment such as small cell wireless facilities that cannot, by their nature, operate unless located aboveground, the provider and Township shall work to find a suitable location for such facilities or equipment, and which may be outside the public right-of-way, only if the Township owns or otherwise manages said locations and has the authority to make them available to the applicant for its communications facilities under similar terms and conditions as locations are made available in the public right-of-way.
E.
At the time of application, per Subsection J(2)(a), the provider shall provide a network plan. The provider shall, upon completion of construction, provide the Township with as-built drawings and a map showing the location of the small cell wireless facilities and equipment.
F.
The applicant shall minimize the number of new proposed small wireless facilities to only those necessary to meet its coverage and capacity requirements.
G.
Applicants shall co-locate on existing poles when possible.
H.
Small cell wireless facilities and supporting poles shall not contain any advertising or signage, other than that which is required by the FCC and New Jersey Board of Public Utilities, as well as other applicable state, local and federal laws, and regulations.
I.
Noise. Small cell wireless facilities shall not violate the provisions of any applicable noise ordinance, including federal and state standards and Montclair Code Chapter 217.
J.
Small cell wireless facility application.
(1)
Approval required. Except as provided in Subsection J(4) below, no person may construct, maintain, or perform any other work related to small cell wireless facilities without first receiving minor site plan approval and all other necessary approvals required under this chapter, and any subsequent approvals, permits or other authorizations required by applicable laws or the Township ordinances.
(2)
Application requirements. The application shall be made by the provider or its duly authorized representative. Twenty copies of the application and associated documents shall be submitted to the Department of Planning and Community Development and shall contain the following:
(a)
Network plan. A plan showing the location of all proposed small cell wireless facility locations and elevations including an evaluation of the specific small cell wireless coverage needs or deficits that the respective applicant or a specific small cell wireless carrier is seeking to remedy by the installation of the new facility. The network plan shall include:
[1]
An inventory of all existing, proposed or approved telecommunication facilities located either within the Township or located outside the Township but providing coverage to any portion of the Township.
[2]
A map showing the exact location of each proposed site, including latitude and longitude, ground elevation above sea level, the height of the structure, and accessory buildings on the site of the inventoried location.
[3]
Details of the existing or proposed small cell wireless support structure and all associated equipment to be mounted thereon, or to be installed as part of such facility, which shall clearly and concisely depict all equipment and the measurements including calculations for all the antennas and equipment.
[4]
At the Township's discretion, the network plan may be reviewed by an engineer who specializes in this field hired by the Township and paid for by the applicant.
(b)
Structural report.
[1]
For existing structures, a report prepared by a licensed engineer certifying that the proposed facility will not diminish the structural integrity and safety of the existing structure and explaining what modifications, if any, will be required in order to certify to the above.
[2]
For new structures, a report prepared by a licensed engineer certifying the structural integrity and safety of the proposed structure.
(c)
Visual impact analysis. An analysis which shall include photographic images and photo simulations taken from the perspectives of the properties situated in closest proximity to the location(s) being proposed for the siting of the small cell wireless facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a "clear line of sight" between the tower location and their location. Said analysis shall include an evaluation of measures that can be taken to mitigate any adverse visual impacts, including, but not limited to, screening, landscaping, artwork on the proposed small cell wireless facility, and proposed tree trimming or removal. Removal of a tree would be subject to the applicable Township ordinances.
(d)
FCC compliance. A report, prepared by a licensed engineer, certifying that the proposed facility will be FCC compliant shall be submitted at the time of initial installation. The Township shall be entitled to conduct random testing and inspections by a licensed engineer engaged by the Township, but paid for by the applicant, to confirm FCC compliance post initial installation. If it is anticipated that more than one carrier and/or user is to install transmitters into the facility then the FCC compliance report shall consider anticipated exposure from all users on the facility and shall indicate whether the combined exposure levels will or will not exceed the permissible general population exposure limits. If the permissible general population exposure limits are exceeded, the applicant shall immediately cease its small cell wireless facility operation until it demonstrates that the general population exposure limits are in compliance. Such FCC compliance report shall provide the calculation or calculations with which the engineer determined the levels of RF radiation and/or emissions to which the facility will expose members of the general public. On the cover page of the report, the report shall explicitly specify the exact minimum distance factor, measured in feet, which the applicant's engineer used to calculate the level of radiation emissions to which the proposed facility will expose members of the general public. The minimum distance factor is the closest distance (i.e., the minimum distance) to which a member of the general public shall be exposed to the radiation emissions. If the levels exceed the exposure limit, then the provider must reduce the exposure.
(e)
FCC license. A copy of any applicable Federal Communications Commission license possessed by any carrier named as an applicant, co-applicant, or whose equipment is proposed for installation as of the time the application is being filed with the Township.
(f)
Drive test data and maps.
[1]
If an applicant claims that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Township, the applicant shall conduct a drive test within the specific geographic areas within which the applicant is claiming such gap or gaps exist, for each frequency at which the carrier provides personal wireless services. The applicant shall provide the Township with the actual drive test data recorded during such drive test, in a simple format which shall include, in table format:
[a]
The date and time for the test or tests.
[b]
A map showing the precise location of each point at which signal strength was recorded. Street addresses shall be included.
[c]
Each signal strength recorded, measured in dBm, for each frequency. Such data is to be provided in a separate table for each frequency at which the respective carrier provides personal wireless services to any of its end-use customers.
[2]
A sworn statement of the accuracy of such drive test data. The applicant shall also submit drive test maps, depicting the actual signal strengths recorded during the actual drive test, for each frequency at which the carrier provides personal wireless services to its end-use customers.
[3]
If an applicant claims that it needs a "minimum" signal strength (measured in dBm) to remedy its gap or gaps in service, then for each frequency, the applicant shall provide three signal strength coverage maps reflecting actual signal strengths in three dBm bins, the first being at the alleged minimum signal strength, and two additional three dBm bin maps depicting signal strengths immediately below the alleged minimum signal strength claimed to be required. A sworn statement of the accuracy of such data shall be included.
(g)
Denial of service and/or dropped call records. If an applicant claims that a specific personal wireless carrier suffers from a capacity deficiency, or a gap in service that renders the carrier incapable of providing adequate coverage of its personal wireless services within the Township, then the applicant shall provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier's customers were unable to initiate, maintain and conclude the use of the carrier's personal wireless services without actual loss of service, or interruption of service. A sworn statement of the accuracy of such data shall be included.
(h)
Indemnification and insurance. The provider, or in the case of a limited-liability company, its parent, shall provide insurance and indemnification of the Township as described in the right-of-way use agreement. Annually, the provider shall provide a certificate of insurance as proof of the following coverages:
[1]
Workers' compensation and employer's liability insurance in compliance with the state's Workers' Compensation Law; and employer's liability insurance with a minimum limit of liability of $500,000.
[2]
Commercial general liability insurance, including pollution coverage, with minimum limit of liability not less than $2,000,000 per occurrence, naming the Township as an additional insured.
[3]
Automobile liability insurance covering claims for bodily injury and property damage arising from all owned, hired, and non-owned vehicles with minimum limit of liability not less than $2,000,000 combined single limit naming the Township as additional insured.
[4]
Excess umbrella insurance, including pollution coverage, to provide excess coverage over the provider's commercial general liability and automobile liability insurance with limits not less than $10,000,000.
(i)
Proprietary or confidential information in application. Applications are public records that may be made publicly available pursuant to the New Jersey Open Public Records Act.[2] Notwithstanding the foregoing, the applicant may designate portions of its application materials that it reasonably believes contain proprietary or confidential information as "proprietary" or "confidential" by clearly marking each portion of such materials accordingly and submitting said materials separately from the remainder of the application, and the Township Attorney shall treat the information as proprietary and confidential, subject to the New Jersey Open Public Records Act and the Township Attorney's determination that the applicant's request for confidential or proprietary treatment of application materials is reasonable. The Township shall not be required to incur any costs to protect the application materials from disclosure, other than the Township's routine procedures for complying with the New Jersey Open Public Records Act.
[2]
Editor's Note: See N.J.S.A. 47:1a-1 et seq.
(3)
Right-of-way use agreement. The Township shall not issue any approval or permit unless the applicant, or a provider on whose behalf the applicant is constructing any small cell wireless facility, has applied for and received the right-of-way use agreement or otherwise has a current and valid franchise with the Township or county, as applicable, expressly authorizing use of the public right-of-way for the small cell wireless facility proposed in the application, and all applicable fees have been paid.
(a)
Prior to installing in the public right-of-way any small cell wireless telecommunications facility or any pole built for the sole or primary purpose of supporting a small cell wireless telecommunications facility, a person shall enter into a right-of-way use agreement with the Township or county, as applicable, expressly authorizing use of the public right-of-way for the communications facility, pole or tower proposed to be installed.
(b)
The term of the right-of-way use agreement with the Township shall not exceed 15 years.
(c)
The right-of-way use agreement authorizes the provider's nonexclusive use of the public right-of-way for the sole purpose of installing, maintaining and operating communications facilities, including any pole built for the sole or primary purpose of supporting the communications facilities and to provide the services expressly authorized in the agreement subject to applicable codes and applicable laws, this chapter and the terms and conditions of the agreement. It is not a warranty of title or interest in any public right-of-way, and it does not confer on the provider any interest in any location within the public right-of-way. No other right or authority is granted except as expressly set forth in the agreement.
(d)
The provider shall, at its sole cost and expense, keep and maintain its small cell wireless communications facilities in the public right-of-way in a safe condition as directed by, and to the satisfaction of, the Township, including, but not limited to, removal of any debris generated by the provider and replacement of any plants, trees or vegetation damaged or destroyed by the provider. If any of the provider's small cell wireless facilities, and appurtenances thereto, its utility poles or its structures causes damage to any public rights-of-way or interferes with the performance of any of the Township's public duties or other uses of the public rights-of-way, the provider agrees, upon notice from the Township, to promptly commence and complete all necessary repairs to cure any such damage at the provider's sole cost and expense. If the provider fails to repair the damage within 30 days after receiving notice from the Township or if an emergency necessitates immediate repair of the damage then the Township, in its sole discretion, may perform the repair work itself in which case the provider shall reimburse the Township for the cost of the repair work within 30 days after receiving a statement detailing such cost.
(e)
Notwithstanding the foregoing, in the event of an emergency, a provider or its duly authorized representative may work in the public right-of-way prior to obtaining a permit, provided that the provider shall attempt to contact the Township prior to commencing the work and shall apply for a permit as soon as reasonably possible, but not later than 24 hours after commencing the emergency work. For purposes of this subsection, an "emergency" means a circumstance in which immediate repair to damaged or malfunctioning facilities is necessary to restore lost service or prevent immediate harm to persons or property.
(f)
Except as otherwise provided in the right-of-way use agreement, franchise agreement or license, the provider may remove its communications facilities from the right-of-way at any time, upon not less than 30 days' prior written notice to the Township, and may cease paying the Township any applicable recurring fees for such use, as of the date of actual removal of the facilities and complete restoration of the public right-of-way as determined by the Township Engineer. In no event shall a provider be entitled to a refund of any fees paid prior to removal of its communications facilities, poles, or towers.
(4)
Ordinary maintenance and repair. Site plan approval shall not be required for ordinary maintenance and repair. The provider or other person performing the ordinary maintenance and repair shall obtain any other permits required by applicable laws and shall notify the Township in writing at least 48 hours before performing the ordinary maintenance and repair. Notwithstanding the foregoing, the Township reserves the right to inspect the applicant's small wireless facilities at any time to determine if the existing configuration matches the configuration contained in the most recently issued permit, and the applicable right-of-way use agreement. The applicant shall bear no costs for said inspections. However, if it is determined that an existing small cell wireless facility is found to be larger than the dimensions specified in the most recently issued applicable permit, then the applicant shall be in violation of this chapter. The applicant shall receive notice from the Township and, upon receipt of such notice, be required to restore the site within 10 days to the configuration of the most recently approved permit or retroactively apply for approval for the unapproved modifications. In such instances, the applicant will be responsible for costs and fees incurred by the Township to perform inspections and review.
(5)
Material changes. Unless otherwise agreed to in writing by the Township, any material changes to an application, as determined by the Township in its sole discretion, shall be considered a new application for purposes of the time limits set forth in this chapter, unless otherwise provided by applicable laws.
(6)
Effect of permit. A permit from the Township authorizes an applicant to undertake only the activities in the public right-of-way specified in the application and permit, and in accordance with this chapter and any general conditions included in the permit. A permit does not authorize attachment to or use of existing poles, towers, support structures or other structures in the public right-of-way; a permittee or provider must obtain all necessary approvals from the owner of any pole, tower, support structure or other structure prior to any attachment or use. A permit does not create a property right or grant authority to the applicant to interfere with other existing uses of the public right-of-way.
(7)
Batch permit. An applicant may simultaneously submit no more than 25 applications for communications facilities, or may file a single, consolidated application covering such communications facilities, provided that the proposed communications facilities are to be deployed on the same type of structure using similar equipment and within an adjacent, related geographic area of the Township. If the applicant files a consolidated application, the applicant shall pay the application fee calculated as though each communications facility were a separate application.
K.
Restoration requirements.
(1)
The provider, or its agent or contractor, shall restore, repair and/or replace any portion of the public right-of-way that is damaged or disturbed by the provider's communications facilities, poles, towers, or work in or adjacent to the public right-of-way. Said restoration, repair and replacement shall be done in a timely fashion to the satisfaction of the Township Engineer, who will determine good workmanship as well as compliance with applicable standards and ordinances regarding road openings and pavement and sidewalk repair.
(2)
If the provider fails to timely restore, repair, or replace the public right-of-way as required in this section, the Township or its contractor may do so, and the provider shall pay the Township's costs and expenses in completing the restoration, repair, or replacement.
L.
Removal, relocation, and abandonment.
(1)
Within 30 days following written notice from the Township, the provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any of its communications facilities, poles, support structures or towers within the public right-of-way, including relocation of aboveground communications facilities underground (consistent with the provisions of this chapter), whenever the Township has determined, in its sole discretion, that such removal, relocation, change or alteration is necessary for the construction, repair, maintenance or installation of any Township improvement or private real estate development, the operations of the Township in, under or upon the public right-of-way, or otherwise is in the public interest. The provider shall be responsible to the Township for any damages or penalties it may incur because of the provider's failure to remove or relocate communications facilities, poles, support structures or towers as required in this section.
(2)
The Township retains the right and privilege to cut or move any communications facility, pole, support structure or tower located within the public right-of-way of the Township, as the Township may determine, in its sole discretion, to be necessary, appropriate, or useful in response to any public emergency. If circumstances permit, the Township shall notify the provider and give the provider an opportunity to move its own facilities prior to cutting or removing the communications facility, pole, support structure or tower. In all cases, the Township shall notify the provider after cutting or removing the communications facility, pole, support structure or tower as promptly as reasonably possible.
(3)
A provider shall notify the Township of abandonment of any communications facility, pole, support structure or tower at the time the decision to abandon is made; however, in no case shall such notification be made later than 30 days' prior to abandonment. Following receipt of such notice, the provider shall remove its communications facility, pole, support structure or tower at the provider's own expense, unless the Township determines, in its sole discretion, that the communications facility, pole, support structure or tower may be abandoned in place. The provider shall remain solely responsible and liable for all its communications facilities, poles, support structures and towers until they are removed from the public right-of-way unless the Township agrees in writing to take ownership of the abandoned communications facilities, poles, support structures or towers.
(4)
If the provider fails to timely protect, support, temporarily or permanently disconnect, remove, relocate, change or alter any of its communications facilities, poles, support structures or towers or remove any of its abandoned communications facilities, poles, support structures or towers as required in this section, the Township or its contractor may do so, and the provider shall pay all costs and expenses related to such work, including any delay damages or other damages the Township incurs arising from the delay.
M.
Application review.
(1)
Pre-application meeting. Prior to making a formal application with the Township for use of the public right-of-way, all applicants are advised to meet voluntarily with the Township Engineer and Director of Planning and Community Development to review the scope of the applicant's proposal. The applicant may also request a review by the Development Review Committee.
(2)
All applications made under this chapter shall be expedited to comply with the shot clocks set forth in the FCC order entitled "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment; Accelerating Wireline Broadband Deployment by the Removal of Barrier to Infrastructure Investment," WT Docket No. 17-79; WC Docket No. 170-84.
(3)
The Township shall advise the applicant in writing of its final decision.
N.
Preexisting sites and municipal agreements.
(1)
Any communications facilities in the public right-of-way existing at the time of the adoption of the provisions of this chapter shall be required to comply with the provisions of this chapter.
(2)
Any right-of-way use agreements entered between the Township and any provider regarding communications facilities in the public right-of-way shall be required to conform to the provisions and standards of this chapter. To the extent the provisions of any existing such agreement conflict with this chapter, said provisions, at the discretion of the Township, shall be replaced and superseded by the applicable terms of this chapter.
O.
New Jersey One Call. In addition to compliance with the applicable provisions of this chapter, prior to the start of any installation of poles, support structures, small wireless facilities or other communications facilities that require excavation, the applicant shall contact New Jersey One Call at 811 at least three full business days' prior to the commencement of work.
P.
Violations and penalties. Violation of any of the provisions of this chapter shall be punishable with a civil penalty of $500 for each violation which continues more than 10 days after written notice of such violation is provided to the person or applicant. Each day, after such notice, that a violation occurs or is permitted to exist by the person or applicant constitutes a separate offense.