Newton City Zoning Code
§ 320-30
Wireless communication facilities.
A.
Purpose. The purpose of this section is to create the opportunity to locate state of the art wireless telecommunications facilities in areas where there will be either minimal or no appreciable adverse impact on the character of the Town. The intent of this section is to limit the location of such facilities to areas which are acceptable to communications companies wishing to provide services to ensure competition is fostered among local wireless service providers, to ensure opportunities for economic development are created, and to ensure local government benefits from services by telecommunications providers. Further, the purpose of this section is to establish general guidelines for the siting of wireless communications facilities including towers and antennae. The goals of this section are to:
(1)
Encourage the location of towers in specific areas within the Town.
(2)
Minimize the total number of towers constructed within the Town.
(3)
Strongly encourage the joint use of new and existing tower sites among telecommunications providers.
(4)
Enhance the ability of telecommunications providers to provide such services to the community quickly, effectively and efficiently.
(5)
Exempt from the provisions hereof noncommercial amateur radio antennae and structures which attend private residences.
(6)
Encourage users of towers and antennae to locate them, to the extent possible, in areas where the adverse impact on the community is minimal.
(7)
Encourage users of towers and antennae to configure them in a way that minimizes the adverse visual impact of the towers and antennae through careful design, siting, landscape screening, and innovative camouflaging techniques.
(8)
Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, the Town of Newton shall give due consideration to the Master Plan, the Zoning Map, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennae.
(9)
Provide requirements for eligible facilities requests for modifications to existing towers that do not constitute a substantial change.
[Added 10-14-2015 by Ord. No. 2015-27]
B. ANTENNA ELIGIBLE FACILITIES REQUEST FAA FCC HEIGHT PREEXISTING TOWERS and PREEXISTING ANTENNAE STEALTH TOWER STRUCTURE SUBSTANTIAL CHANGE(1) (2) (3) (4) (5) (6) TOWER WIRELESS COMMUNICATIONS FACILITIES
Definitions. Definitions shall include the following:
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), or television signals.
A request for modification of an existing wireless tower or base station that does not constitute a substantial change (as defined herein) and involves co-location of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.
[Added 10-14-2015 by Ord. No. 2015-27]
The Federal Aviation Administration.
The Federal Communications Commission.
When referring to a tower or other structure, "height" shall mean the distance measured from the lowest finished grade of the base of the tower to the highest point on the tower or other structure, including the base pad and any antenna or other appurtenances.
Any tower or antenna for which a zoning permit has been issued prior to the effective date of this section.
Man-made trees, clock tower, bell steeples, light poles and other similar alternative design mounting structures that camouflage and/or conceal the presence of antennae or towers.
A modification that substantially changes the physical dimensions of an eligible support structure, as defined by 47 CFR 1.50001(c), as may be amended, but which currently provides the following criteria:
[Added 10-14-2015 by Ord. No. 2015-27]
For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than 10 feet, whichever is greater [Note: Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act, 47 CFR 1.40001(b)(7)(i)(A).];
For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;
It entails any excavation or deployment outside the current site;
It would defeat the concealment elements of the eligible support structure; or
It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in Subsections (1) through (4) of this definition.
Any structure that is designed and constructed primarily for the purpose of supporting one or more antennae for telephones, radio, beepers, pagers, and similar communications purposes including self-supporting lattice towers, guyed towers or monopole towers. The term includes but is not limited to radio and television transmission towers, microwave towers, common carrier towers and cellular or other wireless telephone towers. The term also includes the structure and any support thereof.
Any structure or group of structures including but not limited to towers and antennae, designed and constructed for the purpose of facilitating communications for radios, beepers, pagers, mobile telephones or any other similar devices.
C.
Conditionally permitted uses.
(1)
Wireless communications facilities including towers and antennae shall be conditionally permitted in the T-1 and T-2 Zones, subject to the following specific conditions and standards:
(a)
The property shall be owned, leased or otherwise controlled by the Town of Newton, County of Sussex or a public college, provided a license or lease authorizing such antenna or tower has been approved by the applicable agency. The decision to extend such lease shall be vested solely with the applicable agency and shall not be governed by this section.
(b)
Maximum height shall be 120 feet except where more than one set of commercial transmitting/receiving antennae are collocated on a tower; the total height of the tower shall not exceed 160 feet, measured as the overall height including antennae and other appurtenances.
(c)
Minimum lot size shall be six acres.
(d)
Minimum front yard setback shall be 50 feet or the height of the structure, whichever is greater.
(e)
Minimum side yard setback shall be 50 feet or the height of the structure, whichever is greater.
(f)
Minimum rear yard setback shall be 50 feet or the height of the structure, whichever is greater.
(g)
Minimum distance to residential structures, public or private schools, or houses of worship shall be 750 feet or 300% of the height of the tower, whichever is greater.
(h)
The parcel shall have either:
[1]
A minimum of 700 linear feet of road frontage on a state highway and a minimum of 100 linear feet of road frontage on a municipal road with a portion of the property being at elevation 835 or higher; or
[2]
A minimum of 1,500 feet of road frontage on a county road and a minimum of 1,000 linear feet of road frontage on a municipal road with a portion of the property being at elevation 700 or higher.
(i)
At least one corner of the subject property must be located at the intersection of either a state highway and a municipal road, or a county road and a municipal road.
(j)
The minimum height of security fence shall be six feet and the maximum height shall be eight feet, exclusive of barbed wire on top.
(2)
Equipment shelters constructed in association with antennae or towers located on properties as described above shall maintain a maximum fifteen-foot distance from the base of the structure and shall be appropriately landscaped to minimize visual impact on neighboring properties. In all other zones in the Town, wireless communications facilities as defined herein shall not be considered as either permitted or conditional uses.
(3)
Existing structures located on lands owned or otherwise controlled by the Town of Newton, or private water companies, the County of Sussex, the State of New Jersey or the United States of America may be utilized for the placement of antennae subject to the following conditions:
(a)
The added equipment shall not extend higher than 25 feet above the existing structure upon which said equipment is to be placed.
(b)
The added equipment shall not protrude more than five feet beyond the existing sides of the structure and must not violate existing setbacks.
(c)
Equipment shelters constructed in association with antennae or towers located on an existing structure as described above shall maintain a minimum fifteen-foot distance from the base of the structure and shall be appropriately landscaped to minimize visual impact on neighboring properties.
D.
Co-location on an existing structure; eligible facilities request.
[Amended 10-14-2015 by Ord. No. 2015-27]
(1)
Application. All applicants shall submit the information necessary for the Town to consider whether an application is an eligible facilities request, as set forth in § 320-30J, below. The applicant will not be required to demonstrate a need or business case for the proposed modification.
(2)
Type of review. Upon receipt of an application for an eligible facilities request pursuant to this chapter, the Planning Board Engineer shall review such application to determine whether the application so qualifies.
(3)
Time frame for review. Within 60 days of the date on which an applicant submits an application seeking approval under this chapter, the Town of Newton shall approve the application, unless it determines that the application is not covered by this chapter.
(4)
Tolling of the time frame for review. The sixty-day review period begins to run when the application is filed, and may be tolled only by mutual agreement by the Town of Newton and the applicant, or in cases where the Planning Board Engineer determines that the application is incomplete.
(a)
To toll the time frame for incompleteness, the Planning Board Engineer must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application.
(b)
The time frame for review begins running again when the applicant makes a supplemental submission in response to the Planning Board Engineer's notice of incompleteness.
(c)
Following a supplemental submission, the Planning Board Engineer will notify the applicant within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(5)
If the Planning Board Engineer determines that the applicant's request for co-location is a substantial change to co-location on an existing structure as defined in this chapter, the presumptively reasonable time frame, as prescribed by the FCC's Shot Clock order, will begin to run from the issuance of the Planning Board Engineer's decision that the application is not a covered request. To the extent such information is necessary, the Planning Board Engineer may request additional information from the applicant to evaluate the application. When the Planning Board Engineer determines that such an application constitutes a substantial change, applicable portions of this chapter and the Newton Town ordinances must be complied with.
(6)
Failure to act. In the event the Planning Board Engineer fails to approve or deny a request seeking approval under this chapter within the time frame for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the Town of Newton, in writing, after the review period has expired (accounting for any tolling) that the application has been deemed granted.
(7)
Remedies. Applicants and the Town of Newton or its agents may bring claims related to this chapter to any court of competent jurisdiction.
E.
Design standards for towers and antennas. The following design standards shall apply and be considered part of the site plan review process and require approval pursuant to N.J.S.A. 40:55D-50:
(1)
Aesthetics. At the discretion of the appropriate land use board, towers and antennae shall meet the following requirements:
(a)
Towers shall either maintain a galvanized steel finish subject to any applicable standards of the FAA or the appropriate land use board, or shall be painted a neutral color so as to reduce visual obtrusiveness.
(b)
At a lower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening and landscaping that will blend them into the natural setting and surrounding buildings, and shall be located behind existing structures, buildings or terrain features which will shield the buildings and related structures from view.
(c)
If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be at a neutral ratio that is identical to or closely comparable with the color of the supporting structure, so as to make the antenna and related equipment as visually unobtrusive as possible.
(2)
Lighting. No lighting shall be permitted except as follows, which shall be subject to review and approval of the appropriate land use board as part of the site plan application process:
(a)
A building enclosing electronic equipment may have one light at the entrance to the building, provided the light is attached to the building, is focused downward, and is switched so that the light is turned on only when workers are at the building.
(b)
No lighting is permitted on any tower except lighting specifically required by the FAA.
(c)
Any such required lighting shall be focused and shielded to the greatest extent possible so as not to project toward adjacent and nearby properties.
(3)
State and federal requirements. All towers must meet or exceed current standards and regulations of the FAA, the FCC and any other state or federal agency with the authority to regulate such uses. When any such applicable standards and regulations are changed, the owners of the towers and antennas governed by this section shall bring such towers and antennas into compliance with such revised standards within six months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the immediate removal of the tower or antenna at the owner's expense.
(4)
Building codes. To ensure the structural integrity of towers, the owner of a tower shall ensure it is maintained in compliance with standards contained in the applicable state or local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If upon inspection the Town 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 30 calendar days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 calendar days shall constitute grounds for the immediate removal of the tower or antenna by the owner, lessee or by the Town at the owner's expense.
(5)
Signs. No signs shall be allowed on an antenna or tower, except as may be required by the FAA or the FCC.
(6)
Electronic equipment buildings. Any proposed building related to electronic equipment shall not be more than 15 feet in height nor more than 700 square feet in area, and only one such building shall be permitted on the lot for each provider of communication services located on the site.
(7)
Parking. Minimum off-street parking shall be permitted as needed and approved by the appropriate land use board.
(8)
Security. All towers shall be designed with anticlimbing devices to prevent unauthorized access. Additionally, any tower supporting cellular or other wireless tower antennas and any building enclosing related electronic equipment shall be surrounded by a fence between six feet and eight feet high, excluding barbed wire. The fence shall be bordered by a double-stepped row of evergreen conifer trees at least eight feet tall at the time of planting and shall be planted 10 feet on center.
(9)
Interference with public safety communications. No cellular or other wireless antenna and/or its related electronic equipment shall interfere with any public safety communications.
(10)
Noise. Noise levels at any property line shall not exceed 50 decibels or current noise standards promulgated by the State of New Jersey, whichever is less.
(11)
Generators. Any generator located on the site shall be enclosed within a portion of the electronic equipment building. Any fuel storage shall be in compliance with federal and state regulations, and shall be limited to fuel stored within the primary fuel tank provided by the manufacturer of the generator. No auxiliary or supplementary fuel storage shall be permitted.
F.
General requirements for towers and antennas.
(1)
Principal or accessory use. Antennas and towers shall be considered principal uses. Notwithstanding any other Town land use regulations, an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. If a tower and its appurtenant structures constitute the sole use of the lot, the tower shall be deemed to be the principal use.
(2)
Lot size. For the purpose of determining whether the installation of a tower or antenna complies with the zone district development 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 may be located on leased parcels within such lot.
(3)
Facility abandonment. In the event that any tower is abandoned or is not operated for a period of one year, the same shall be removed within 60 days' notice by the Town at the sole expense of the owner. The owner shall provide a performance bond and/or other assurances satisfactory to the Planning Board and the Town that will cause the antennas, the supporting tower, the auxiliary building enclosing related electronic equipment, and all other related improvements to the land to be removed at no cost to the Town.
G.
Site plan submission and approval requirements for new wireless facilities and substantial changes with co-location on an existing tower. In addition to the applicable documentation and items of information required for major site plans within the Town Land Use Ordinance, the following additional documentation and items of information shall be required as part of any wireless communications facility site plan application for any site in the Town, regardless of whether the proposed site is in an area where such a tower is a permitted use:
[Amended 10-14-2015 by Ord. No. 2015-27]
(1)
A scaled site plan clearly indicating the location, type and height of the proposed facility, on-site land uses and zoning, adjacent land uses and zoning (including if the site is adjacent to other municipalities), adjacent roadways, proposed means of access, setback from property lines, elevation drawings of the proposed tower and other structures, topography, woodlands, tree lines, buffers or significant topographic terrain features, parking and other information deemed necessary to assess compliance with this section.
(2)
The setback between the proposed tower and the nearest residential unit.
(3)
Documentation by a qualified expert regarding the capacity of the proposed tower for the number of antennas.
(4)
Documentation by a qualified expert that any proposed tower will have sufficient structural integrity to support the proposed antennas and the anticipated future co-located antennas, and will meet the structural standards developed for antennas by the Electronic Industries Association and/or the Telecommunication Industry Association. Such documentation shall also indicate that the applicant shall make available any unoccupied space in an existing equipment building or shall permit the co-locator to construct its own separate equipment building if existing space is not available.
(5)
A letter of intent by the applicant in a form acceptable to the Town indicating the applicant will share the use of any tower with other approved cellular or other wireless communications services. Additionally, the applicant shall make available to subsequent co-locators any space in the applicant's existing equipment building, or if no additional space is available to address the needs of the proposed co-locator, the applicant shall make available a portion of the site for construction of an additional equipment building for the use of the proposed co-locator.
(6)
A visual sight distance analysis graphically simulating the appearance of any proposed tower and indicating the view from at least five locations around and within one mile of the proposed tower where the tower will be most visible.
(7)
An overall comprehensive plan indicating how the applicant intends to provide full service throughout the Town and, to the greatest extent possible, how its plan to provide full service specifically relates to and is coordinated with the needs of all other providers of cellular or other wireless communications services within the Town. Specifically, the plan shall indicate the following:
(a)
How the proposed antenna relates to the location of any existing towers within the Town.
(b)
How the proposed location relates to the anticipated need for additional antennas and supporting towers within and near the Town by the applicant and by other providers of cellular or other wireless communications services within the Town.
(c)
How the proposed location relates to the objective of allocating the antennas of many different providers of cellular or other wireless communications services on the same tower.
(d)
How the proposed location relates to the overall objective of providing full cellular or other wireless or other forms of wireless communications services within the Town while, at the same time, limiting the number of towers to the fewest possible.
(e)
A radio frequency emissions report from a qualified expert detailing latent site emissions.
(8)
Upon completion of the construction of the facility, as-built drawings (plans and profiles) certified by a professional engineer licensed by the State of New Jersey shall be submitted showing all improvements, appurtenances, structures and conditions at the time of preparation.
(9)
No modifications and/or additions to the facilities which are the subject of an approved site plan shall be made without subsequent application to, and review and approval by, the appropriate land use board of an amended site plan showing such modifications or additions.
(10)
The applicant shall protect and preserve by deed restriction which shall be subject to the approval of the land use board attorney, all existing, proposed and/or required buffers, subject to reasonable construction easements to facilitate completion of all proposed improvements.
H.
Existing towers. Nonconforming towers or antennas that are damaged or destroyed may not be rebuilt without having to first obtain site plan approval and a conditional use permit, and shall be required to meet the requirements specified above. The type, height, and location of the tower on site shall be of the same type and intensity as the original facility as approved. Building permits to rebuild the facility shall comply with the then applicable building codes, and shall be obtained within 180 days from the date when the facility was damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in § 320-30I.
I.
Abandonment and removal. Any antenna or tower that is not operated for a continuous period of six months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 90 days of receipt of notice from the Town of Newton notifying the owner of such abandonment. Towers that are rendered obsolete or outdated by advances in technology shall be removed or modified. Failure to remove an obsolete, outdated or abandoned antenna or tower within 90 days shall be grounds for the Town to require removal of the tower or antenna at the owner's or property owner's expense. 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 or same is deemed obsolete or outdated by the Town. The Town may condition the issuance of any permit to construct a tower or antenna on the posting of an appropriate performance bond or other suitable guarantee in a face amount of not less than 120% of the cost to remove the tower and restore the property as determined by the Town Engineer for such construction as required under all applicable Town ordinances.
J.
Eligible facilities request application requirements. An eligible facilities request application shall include the following:
(1)
Applicant's certification that he/she has the legal authority to co-locate/modify support structures, which may include approvals from the jurisdiction authorizing the initial placement of transmission equipment on the tower or other structure.
(2)
The identity of the owner of the parcel.
(3)
Detailed site information. Except where the facility will be located entirely within an existing structure or an existing building, detailed site plan information shall show:
(a)
Existing and proposed improvements. The location and dimensions of the existing facility and the maximum height aboveground of the facility (also identified in height above sea level).
(b)
Elevation. The benchmarks and datum used for elevations.
(c)
Design. The design of the facility, including the specific type of support structure and the design, type, location, size, height and configuration of applicant's existing and proposed antennas and other equipment. The method(s) by which the antennas will be attached to the mounting structure shall be depicted.
(d)
Setbacks. All existing setbacks.
(e)
Location of accessways. The location of all existing accessways and the location and design of all proposed accessways.
(4)
All applications for cellular towers, including co-location and eligible facilities requests, shall comply with any and all general applicable building, structural, electrical, and safety codes, as well as any others deemed by the Town to be related to health and safety.
(5)
Further, all such applications shall also comply with the requirements of the Historic Preservation District, as applicable, and any concerns or comments made by the Commission thereto.