Rutherford City Zoning Code
ARTICLE IXA
Wireless Telecommunications Towers and Antennas
§ 131-52.1 Purpose.
A.
The purpose of this article is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this article are to:
(1)
Protect residential areas and land uses from potential adverse impacts of towers and antennas;
(2)
Encourage the location of towers in nonresidential areas;
(3)
Minimize the total number of towers throughout the community;
(4)
Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;
(5)
Encourage use of existing buildings, light and utility poles and/or towers, to the extent possible, where appropriate, as opposed to the construction of new towers in areas where the adverse impact on the community is minimal;
(6)
Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal;
(7)
Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening, and innovate camouflaging techniques;
(8)
Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently;
(9)
Consider the public health and safety of communication towers; and
(10)
Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.
B.
In furtherance of these goals, the Borough of Rutherford shall give due consideration to the Borough of Rutherford's Master Plan, Zoning Map, existing land uses, and environmentally sensitive areas in approving sites of towers and antennas.
§ 131-52.2 Definitions.
As used in this article, the following terms shall have the meanings set forth below:
Man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers, and similar alternative-design mounting or stealth structures that camouflage or conceal the presence of antennas or towers.
The buildings, cabinets, vaults, closures and equipment required for operation of telecommunications systems, including but not limited to repeaters, equipment housing, and ventilation and other mechanical equipment.
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, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals. Parabolic dish antennas used for satellite communications shall not be included within this definition.
The lines that connect a provider's towers/cell sites to one or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network.
When two or more receiving and/or transmitting facilities are placed together in the same location or on the same antenna support structure.
The Federal Aviation Administration.
The Federal Communications Commission.
A tower that is supported or braced through the use of cables (guy wires) that are permanently anchored.
When referring to a tower or other structure the distance measured from the lowest finished grade of the parcel to the highest point on the tower or other structure, including the base pad and any antenna.
A type of mount that is self-supporting with multiple legs and cross-bracing of structural steel.
The type of tower that is self-supporting with a single shaft of wood, steel, or concrete and a platform (or racks) for panel antennas arrayed at the top.
The surface or structure upon which antennas are mounted, including the following three types of mounts:
BUILDING MOUNTMounted on the roof or the side of a building.
GROUND MOUNTEDAntenna support (tower) mounted on the ground.
STRUCTURE MOUNTEDMounted on or in a structure other than a building.
Any tower or antenna for which a building permit or conditional use permit has been properly issued prior to the effective date of this article, including permitted towers or antennas that have not yet been constructed so long as such approval is current and has not expired.
The emissions from wireless telecommunications facilities or any electromagnetic energy within the frequency range from 0.003 MHZ to 300,000 MHZ.
A telecommunications facility that is designed or located in such a way that the facility is not readily recognizable as telecommunications equipment (see "alternative tower structure").
Any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. The term includes the structure and any support thereto.
Any personal wireless services as defined in the Federal Telecommunications Act of 1996 which includes FCC licensed commercial wireless telecommunications services, including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging, and similar services that currently exist or that may in the future be developed. It does not include any amateur radio facility that is owned and operated by a federally licensed amateur radio station operator or is exclusively for receive-only antennas, nor does it include noncellular telephone service.
§ 131-52.3 Applicability.
B.
Amateur radio station operators/receive only antennas. This article shall not govern any tower, or the installation of any antenna, that is under 70 feet in height and is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive only antennas.
D.
AM Array. For purposes of implementing this article, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right.
E.
Satellite dish antennas. This article shall not govern any satellite dish antennas presently regulated under the Borough Code.
§ 131-52.4 General requirements.
A.
Principal or accessory use. Antennas and towers may be considered either principal or accessory uses. Notwithstanding any other borough land use regulation, a different 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.
B.
Lot size. For purposes of determining whether the installation of a tower or antenna complies with zone 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 or towers may be located on leased parcels within such lot.
C.
Inventory of existing sites. Each applicant for an antenna and/or tower shall provide to the Building Inspector an inventory of existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the Borough of Rutherford or within three miles of the border thereof, including specific information about the location, height, and design of each tower. The Building Inspector may share such information with other applicants applying for administrative approvals or permits under this article or other organizations seeking to locate antennas within the jurisdiction of the Borough of Rutherford; provided, however, that the Building Inspector is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.
D.
Aesthetics. Towers and antennas shall meet the following requirements:
(1)
Towers shall either maintain a galvanized steel finish or, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness.
(2)
At a tower 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.
(3)
If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.
E.
Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views.
F.
State or federal requirements. All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this article shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a 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 removal of the tower or antenna at the owner's expense.
G.
Building codes; safety standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable State of New Jersey or the borough's 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 Borough of Rutherford 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 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.
H.
Not essential services. Towers and antennas shall be regulated and permitted pursuant to this article and shall not be regulated or permitted as essential services, public utilities, or private utilities.
I.
Franchises. Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the Borough of Rutherford have been obtained and shall file a copy of all required franchises with the administrative officer.
J.
Public notice. For purposes of this article, any conditional use request, variance request, or appeal of an administratively approved use or conditional use shall require public notice to all abutting property owners and all property owners of properties that are located within 200 feet of the property on which the wireless antennae is proposed, in addition to any notice otherwise required by the Code of the Borough of Rutherford or the New Jersey State Municipal Land Use Act.[1]
[Amended 11-23-2009 by Ord. No. 3193-09]
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
K.
Signs. No signs shall be allowed on an antenna or tower.
L.
Buildings and support equipment. Buildings and support equipment associated with antennas or towers should comply with the requirements of this chapter.
M.
Multiple antenna/tower plan. The Borough of Rutherford encourages and mandates the owners of towers and antennas to collocate antennas. Applications for approval of collocation sites shall be given priority in the review process.
§ 131-52.5 Towers and antennas not permitted uses.
[Amended 11-10-2008 by Ord. No. 3166-08]
Towers and antennas shall not be permitted, except by conditional use permit.
§ 131-52.6 Conditional use permits.
A.
List of conditional uses. The following uses may be approved by the Borough as conditional uses:
(1)
Antennas on existing structures or towers consistent with the terms of Subsection A(1) and (2) below:
(a)
Antennas on existing structures. Any antenna which is not attached to a tower may be attached to any business, industrial, office or institutional structure not located in a residential zone, provided:
[Amended 11-10-2008 by Ord. No. 3166-08]
(b)
Antennas on existing towers. An antenna may be attached to an existing tower in a nonresidential zone, and, to minimize adverse visual impacts associated with the proliferation and clustering of towers, collocation of antennas by more than one carrier on existing towers shall take precedence over the construction of new towers, provided such collocation is accomplished in a manner consistent with the following:
[1]
A tower which is modified or reconstructed to accommodate the collocation of an additional antenna shall be of the same tower type as the existing tower, unless the Building Inspector allows reconstruction as a monopole.
[2]
[3]
On-site location.
[a]
A tower which is being rebuilt to accommodate the collocation of an additional antenna may be moved on-site within 50 feet of its existing location.
[b]
After the tower is rebuilt to accommodate collocation, only one tower may remain on the site.
[c]
A relocated on-site tower shall continue to be measured from the original tower location for purposes of calculating separation distances between towers. The relocation of a tower shall be subject to site plan approval by the Planning Board.
(2)
New towers. New monopoles may be constructed in a nonresidential zone, subject to the conditions outlined in this article, to hold antennas. Lattice towers and any type of guyed towers are prohibited. In addition to any information required for applicants for conditional use permits pursuant to this chapter, applicants for a conditional use permit for a tower shall submit the following information:
(a)
A scaled site plan clearly indicating the location, type and height of the proposed tower, on-site land uses and zoning, adjacent land uses, and zoning (including when adjacent to other municipalities), Master Plan classification of the site and all properties within the applicable separation distances set forth herein, adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower and other structures, topography, parking, and other information deemed by the Building Inspector to be necessary to assess compliance with this article.
(b)
Legal description of the entire tract and leased parcel (if applicable).
(c)
The setback distance between the proposed tower and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties.
(d)
The separation distance from other towers described in the inventory of existing sites shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing towers(s), if known.
(e)
A landscape plan showing specific landscape materials.
(f)
Method of fencing, and finished color, and, if applicable, the method of camouflage and illumination.
(g)
A description of compliance with this article and all applicable federal, State of New Jersey or borough ordinances.
(h)
A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users.
(i)
Identification of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality.
(j)
A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower.
(k)
A description of the feasible location(s) of future towers or antennas within the Borough of Rutherford based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected.
(l)
A visual study depicting where, within a three-mile radius, any portion of the proposed tower could be seen.
(m)
A statement of intent on whether excess space will be leased.
B.
Factors considered in granting conditional use permits for towers. In addition to any standards or consideration of conditional use permit applications pursuant to this chapter, the Planning Board shall consider the following factors in determining whether to issue a conditional use permit:
(1)
Height of the proposed tower;
(2)
Proximity of the tower to residential district boundaries;
(3)
Nature of uses on adjacent and nearby properties;
(4)
Surrounding topography;
(5)
Surrounding tree coverage and foliage;
(6)
Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
(7)
Proposed ingress and egress;
(8)
Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in this article; and
(9)
Availability of the proposed tower to other potential users.
C.
Availability of suitable existing towers, other structures, or alternative technology. No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Planning Board that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's proposed antenna. An applicant shall submit information requested by the Planning Board related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following:
(1)
No existing towers or structures are located within the geographic area which meet applicant's engineering requirements.
(2)
Existing towers or structures are not of sufficient height to meet applicant's engineering requirements.
(3)
Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.
(4)
The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.
(5)
The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable.
(6)
The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.
(7)
The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.
D.
Setbacks. The following setback requirements shall apply to all towers for which a conditional use permit is required:
(1)
Towers must be set back a distance equal to at least 100% of the height of the tower from any adjoining lot line and all nonappurtenant buildings.
(2)
Guides and accessory buildings must satisfy the minimum zoning district setback requirements as set forth in this chapter.
(3)
No tower shall exist within required buffer areas, if adjacent to residential zones and as prescribed under local ordinance.
(4)
The minimum tower setback from a residential zone district line and from any school and from any site designated on the federal, state or municipal historic register shall be 500 feet.
E.
Separation. The following separation requirements shall apply to all towers and antennas for which a conditional use permit is required:
(2)
Separation distances between towers. Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be 1,000 feet.
F.
Security fencing. Towers shall be enclosed by security fencing not less than six feet in height and shall also be equipped with an appropriate anticlimbing device.
G.
Landscaping. The following requirements shall govern the landscaping surrounding towers:
(1)
Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from property used for residences or planned residences. The standard buffer shall consist of a landscaped strip at least four feet wide outside the perimeter of the compound.
(2)
In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced.
(3)
Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.
H.
General requirements. The following provisions shall govern the issuance of conditional use permits for towers or antennas by the approving authority.
(1)
A conditional use permit shall be required for the construction of a tower or the placement of an antenna.
[Amended 11-10-2008 by Ord. No. 3166-08]
(2)
Applications for conditional use permits under this section shall be subject to the procedures and requirements of this chapter, except as modified in this section.
(3)
In granting a conditional use permit, the Planning Board may impose conditions to the extent the Planning Board concludes such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties.
(4)
Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by a licensed professional engineer.
(5)
An applicant for a conditional use permit shall submit the information described in this section and a nonrefundable application fee and an escrow deposit as required by the Borough of Rutherford Code for conditional use applications.
(6)
Locating a tower or antenna, including the placement of additional buildings or other supporting equipment used in connection with said tower or antenna are permitted as conditional uses only in the following zones.
[Amended 11-10-2008 by Ord. No. 3166-08]
(a)
No towers or antennas shall be permitted as conditional uses in a residential zone.
(7)
An application fee and escrows shall be paid as required by the Borough Code.
§ 131-52.7 Buildings or other equipment storage.
A.
Antennas mounted on structures or rooftops. The equipment cabinet or structure used in association with antennas shall comply with the following:
(1)
The cabinet or structure shall not contain more than 100 square feet of gross floor area or be more than 10 feet in height. In addition, for buildings and structures which are less than 40 feet in height, the related unmanned equipment structure shall be located on the ground and shall not be located on the roof of the structure.
(2)
If the equipment structure is located on the roof of a building, the area of the equipment structure and other equipment and structures shall not occupy more than 10% of the roof area.
(3)
Equipment storage buildings or cabinets shall comply with all applicable building codes.
B.
Antennas mounted on utility poles or light poles. The equipment cabinet or structure used in association with antennas shall be located in accordance with the following:
(1)
In a front or side yard, provided the cabinet or structure is no greater than six feet in height or 100 square feet of gross floor area and the cabinet/structure is located a minimum of 75 feet from all lot lines. The cabinet/structure shall be screened by an evergreen hedge with an ultimate height of at least 42 to 48 inches and a planted height of at least 36 inches.
(2)
In a rear yard, provided the cabinet or structure is no greater than eight feet in height or 120 square feet in gross floor area. The cabinet structure shall be screened by an evergreen hedge with an ultimate height of eight feet and a planted height of at least 48 inches.
(3)
In all other instances, structures or cabinets shall be screened from view of all residential properties which abut or are directly across the street from the structure or cabinet by a solid fence six feet in height or an evergreen hedge with an ultimate height of eight feet and a planted height of at least 72 inches.
C.
Antennas located on towers. The related unmanned equipment structure shall not contain more than 200 square feet of gross floor area or be more than 10 feet in height, and shall be located in accordance with the minimum yard requirements of the zoning district in which located.
§ 131-52.8 Removal of abandoned antennas and towers.
Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 90 days of receipt of notice from the Borough of Rutherford notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said 90 days shall be grounds to remove the tower or antenna at the 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. The borough may condition the issuance of any permit to demolish or remove a tower or antenna on the posting of an appropriate performance bond or other suitable guarantee in the face amount of not less than 120% of the cost (as determined by the Planning Board Engineer) of such removal, grading and restoration to a state required under all applicable Borough Ordinances, including but not limited to Chapter 78, Property Maintenance.
§ 131-52.9 Existing towers.
Rebuilding damaged or destroyed nonconforming towers or antennas. Nonconforming towers or antennas that are damaged or destroyed may not be rebuilt without having to first obtain administrative approval or a conditional use permit and without having to meet the separation requirements specified herein. The type, height, and location of the tower on-site shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned.
§ 131-52.10 Technical consultants.
The Planning Board or Zoning Board may, as it deems appropriate, retain technical consultants as it deems necessary to provide assistance in the review of the site location alternatives analysis. The service provider shall bear the reasonable cost associated with such consultation, which cost shall be deposited in accordance with the borough's escrow policies.
§ 131-52.11 Site plan approval required.
Site plan approval by the Planning Board is required for the installation of any wireless communications tower and/or antenna within the municipal boundaries in all zoned districts. Each application shall include a site plan showing the specific design, location, size and construction of the proposed structure which shall comply in all respects with the standards enumerated herein.
§ 131-52.12 Monitoring and maintenance.
A.
After the wireless telecommunications facility is in operation, the applicant shall submit, within 90 days of beginning operations, and at annual intervals from the date of issuance of the building permit, existing measurements of RFR from the wireless telecommunications facility. Such measurements shall be signed and certified by a radio frequency engineer, stating that FRF requirements are accurate and meet FCC guidelines as specified in the radio frequency standards section of this section.
B.
The applicant and coapplicant shall maintain the wireless telecommunications facility in good condition. Such maintenance shall include, but not be limited to, painting, structural integrity of the mount and security barrier, and maintenance of the buffer areas and landscaping.
§ 131-52.13 Terms and conditions to be binding.
This ordinance and all of its terms and conditions, including annual reporting and continued maintenance, shall be binding upon the applicant, coapplicant, any legal successor in interest, and the real party in interest.