West New York, NJ Zoning Ordinance

[Added 2-21-2001 by Ord. No. 1/01]

§ 414-97 Purpose.

The purpose of this article is to set forth terms and conditions for the siting of wireless communications towers and antennas within the geographic boundaries of the town. The goals of this Ordinance are to: protect residential areas and land uses from potential adverse impacts of towers and antennas; encourage the location of towers in specific areas within the town; minimize the total number of towers throughout the town; strongly encourage the joint use of new and existing tower sites for collocation of antennas as a primary option rather than construction of additional single-use antennas; encourage users of towers and antennas to locate them, to the greatest extent possible, in areas where the adverse impact on the community is minimal; encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques; enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently; consider the public health and safety of communication towers; and avoid substantial detriment to the public good and which will not substantially impair the intent and purpose of zoning. In furtherance of these goals, the Town of West New York shall give due consideration to the town's Master Plan, Zoning Map, existing land uses and environmentally sensitive areas in approving sites for the location of towers and antennas. This article further seeks to comply with the mandate of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), which preserves local government authority to manage with respect to cellular and other wireless telecommunications services and to enforce zoning requirements that protect public safety, public and private property and community aesthetics. This article expressly recognizes that the proposed site must be particularly suited (or suitable) for the proposed facility.

§ 414-98 Definitions.

As used in this article, the following terms shall have the meanings set forth below:

ANTENNA

Any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communications signals.

APPROVING AUTHORITY

The Planning Board with respect to conditional use permits; the Zoning Board of Adjustment with respect to variance requests pursuant to N.J.S.A. 40:55D-70d(1), d(3) and/or d(6); and/or the Zoning Officer for permitted uses with respect to this article and Town Code, as well as applicable state and federal law, in conjunction with the Planning Board.

BACKHAUL NETWORK

The lines that connect a provider's towers/cell sites to one or more cellular telephone switching offices and/or long distance providers and/or the public switched telephone network.

FAA

The Federal Aviation Administration.

FCC

The Federal Communications Commission.

HEIGHT

When referring to a tower or other structure, 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.

PREEXISTING TOWERS AND PREEXISTING ANTENNAS

Any tower or antenna for which a construction permit or other permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired, and including any tower or antenna that is presently a permitted use pursuant to § 414-101B(1) on property owned, leased or otherwise controlled by the town.

STEALTH TOWER STRUCTURE

Man-made trees, clock towers, bell steeples, light poles and other similar alternative-design mounting structures that camouflage and/or conceal the presence of antennas or towers.

TOWER

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 or monopole towers. Guyed towers are not permitted within the town. The term includes, but is not limited to, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, alternative tower structures and the like. The term also includes the structure and any support thereto.

§ 414-99 Applicability.

New towers and antennas. All new towers or antenna in the Town of West New York shall be subject to these regulations, except as provided in § 414-99B through D inclusive.

Amateur radio station operators/receive only antennas. This Ordinance 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.

Preexisting towers or antennas. Preexisting towers and preexisting antennas shall not be required to meet the requirements of this article, other than the requirements of § 414-100F and G, absent any enlargement or structural modification or the addition of any structures and per the definition in § 414-98 herein.

Satellite dish antennas. This article shall not govern any parabolic satellite antennas. However, dish antennas on a tower are permitted in favor of other antennas, such as whip antennas.

§ 414-100 General requirements.

Principal or accessory use. Antennas and towers may be considered an accessory use when located on municipal property; otherwise, they are to be considered principal uses.

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.

Inventory of existing sites. Each applicant for an antenna and/or tower shall provide to the approving authority, where applicable, an inventory of all existing towers (both those controlled by the appellant as well as their competitors), antennas or located in the Town of West New York or within three miles of any border of the town thereof, including specific information about the location, height and design of each tower. The Zoning Officer or other applicable town official shall share such information with other applicants applying for administrative approvals or permits under this Ordinance and organizations seeking to locate antennas within the jurisdiction of the Town of West New York; provided, however, that the Zoning Officer or other applicable town official is not, by sharing such information, in any way representing or warranting that such sites are available and/or suitable.

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 or the town, 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 and shall be located out of public view (visible from a public street, public land and public buildings) behind existing structures, buildings or terrain features which will shield the buildings and related structure from view.

(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.

Lighting. Towers shall not be artificially lit unless required by the FAA. It is the intent of the town that towers shall not exceed FAA height standards that would require lighting. If lighting is required, the lighting alternatives and design chosen and approved by the approving authority must cause the least disturbance to the surrounding views and quality of life.

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 or town 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 of West New York 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 at the owners expense.

Not essential services or inherently beneficial uses. Towers and antennas shall be regulated and permitted pursuant to this article and shall not be regulated or permitted as inherently beneficial uses, essential services, public utilities or private utilities.

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 communications system in the town of West New York have been obtained and shall file a copy of all required franchises with the Zoning Officer or other applicable town official.

Public notice. For purposes of this article, any conditional use or variance request shall require public notice to all abutting property owners and all property owners of properties that are located within the corresponding separation distance listed in § 414-102, Table 1, in addition to any notice otherwise required by the Town Code or applicable state/federal law.

Signs. No signs shall be allowed on an antenna or tower.

Buildings and support equipment. Buildings and support equipment associated with antennas or towers shall comply with the requirements of § 414-103.

Multiple antenna/tower plan. The Town of West New York encourages and mandates the users of towers and antennas to collocate antennas where technically, practically and economically feasible. Applications for approval of collocation sites shall be given priority in the review process.

§ 414-101 Permitted uses.

General. The uses listed in this section are deemed to be permitted uses and shall not require a conditional use permit or variance application.

Permitted uses. The following uses are specifically permitted:

(1)

Antennas or towers located on property owned, leased or otherwise controlled by the Town of West New York, provided that a license or lease authorizing such antenna or tower has been approved by the Town of West New York. However, the town may, as a condition of such lease, require site plan approval. The decision to extend such leases to an applicant shall be vested solely with the town; shall not be governed by this article; and shall be subject to the bidding requirements of the Local Public Contracts Law of the State of New Jersey.[1] The town, in its absolute discretion, reserves the express right to deny any and/or all use of its property for antennas or towers.

[1]

Editor's Note: See N.J.S.A. 40A:11-1 et seq.

§ 414-102 Conditional use permits and variance applications.

List of conditional uses. The following uses may be approved by the applicable approving authority as conditional uses.

(1)

Antennas on existing towers - consistent with the terms below. An antenna may be attached to an existing tower, as of the passage of this article in the town; 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 that such collocation is accomplished in a manner consistent with the following:

(a)

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 approving authority allows reconstruction as a monopole.

(b)

Height.

[1]

An existing tower may be modified or rebuilt to a taller height, not to exceed the maximum tower height established by this article.

[2]

The height change referred to in Subsection A(1)(b)[1] may only occur one time per each additional user of the tower, up to a maximum of three times per tower.

[3]

The additional height referred to in Subsection A(1)(b)[1] shall not require an additional distance separation as set forth in this section. The tower's premodification height shall be used to calculate such distance separations.

(c)

On-site location.

[1]

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.

[2]

A relocated on-site tower shall continue to be measured from the original tower location for purposes of calculating separation distances between towers pursuant to this section. The relocation of a tower hereunder shall in no way be deemed to cause a violation of this section.

Factors considered in granting conditional use permits or variances for towers.

(1)

In addition to any standards for consideration under the applicable provisions of the West New York Code and state/federal law, the approving authority, in considering conditional use permit applications, shall consider the following factors in determining whether to issue a conditional use permit or grant a variance (if applicable):

(a)

Height of the proposed tower.

(b)

Proximity of the tower to residential structures and residential district boundaries.

(c)

Nature of uses on adjacent and nearby properties.

(d)

Surrounding topography.

(e)

Surrounding tree coverage and foliage.

(f)

Design of the tower with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness.

(g)

Proposed ingress and egress.

(h)

Availability of suitable existing towers, other structures or alternative technologies not requiring the use of towers or structures as discussed in § 414-102C of this ordinance.

(i)

Availability of proposed tower to other potential users.

(j)

All relevant criteria as set forth by the New Jersey Supreme Court in Smart SMR of New York, Inc. v. Borough of Fair Lawn Board of Adjustment, 152 N.J. 309 (1998), whether the proposed site is particularly suited (or suitable) for the proposed facility.

(2)

This list is considered to be illustrative in nature and may not include all factors to be considered. The applicable land use bond will also be governed by the provisions of Municipal Land Use Law.[1]

[1]

Editor's Note: See N.J.S.A. 40:55D-1 et seq.

Availability of suitable existing towers, other structures, or alternative technology. No new tower on non-town owned, controlled or leased property shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the approving authority 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 approving authority related to the availability of suitable existing towers, stealth tower structure, 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 town's boundaries 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)

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. Costs exceeding new tower development are presumed to be unreasonable.

(6)

Applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.

(7)

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. Cost of alternative technology that exceeds new tower or antenna cost shall not be presumed to render the technology unsuitable.

Separation. The following separation requirements shall apply to all towers and antennas for which a conditional use permit or variance is required:

(1)

Separation from off-site uses/designated areas.

(a)

Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specified in Table 1, except as otherwise provided in Table 1.

(b)

Separation requirements for towers shall comply with the minimum standards established in Table 1 below:

Table 1
Off-site Use Designated Area		Separation Distance
Base of tower to:
	Residential, municipal building, (unless the tower is on the municipal building site), libraries or houses worship	300 feet or 300% of the tower, whichever is greater
	Vacant residentially zoned land	300 feet or 300% of the tower, whichever is greater
	Nonresidentially zoned lands or nonresidential uses	At least 120% of the height of the tower from any adjoining lot line and all nonappurtenant buildings

(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 based 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 as shown in Table 2 below:

Table 2
Separation Distances Between Towers - Types
	Lattice	Monopole 100 feet.or Greater in Height	Monopole Less Than 100 feet in Height
Lattice	5,000	1,500	750
Monopole 100 feet or greater in height	1,500	1,500	750
Monopole less than 100 feet in height	750	750	750

Security fencing. Towers shall be enclosed by security fencing not less than eight feet in height and shall also be equipped with appropriate anti-climbing measures.

Landscaping. The following requirements shall govern the landscaping surrounding towers for which a conditional use permit or variance is required:

(1)

Tower facilities shall be landscaped with a buffer or plant materials or other landscaping materials that effectively screens the view of the tower compound from property used for residences or planned residences or any other area frequented by the public.

(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.

Height. The maximum height of any towers within the town shall be:

(1)

For single tower user, up to 100 feet in height.

(2)

For two tower users, up to 120 feet in height.

(3)

For three or more tower users, up to 150 feet in height.

General requirements. The following provisions shall govern the issuance of conditional use permits or variances for towers or antennas by the approving authority;

(1)

If the tower or antenna is not a permitted use under § 414-101 of this article, then a conditional use permit or variance shall be required for the reconstruction of an existing tower or the placement of an antenna on an existing tower/site or other requirements as set forth herein regarding existing tower/antenna sites.

(2)

Applications for conditional use permits and variances under this section shall be subject to the procedures and requirements of the Town Code, as well as applicable state law, except as modified in this section.

(3)

In granting conditional use permit(s) or variance(s), the approving authority may impose conditions to the extent the approving authority concludes such conditions are necessary to minimize any adverse effect of the proposed tower/antenna 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 variance or conditional use permit shall submit the information described in the this section and a nonrefundable application fee and an escrow deposit as follows.

		Application Charge		Escrow ccount
	If no new tower is proposed	$1,000	Plus	$2,000
	If a new tower is proposed	$5,000	Plus	$5,000

(6)

No towers or antennas shall be permitted as conditional uses in residentially zoned districts unless located upon property owned by the Town of West New York and subject to the provisions of § 414-101B of this article.

(7)

The application fee and escrows shall be paid as required herein.

§ 414-103 Buildings or other equipment storage.

Antennas mounted on structures or rooftops. The equipment, cabinet or structure used in association with antennas shall comply with criteria listed below. For antennas mounted on structures or on rooftops, the criteria are as follows:

(1)

The cabinet or structure shall not contain more than 200 square feet of gross floor area or be more than 10 feet in height. In addition, for buildings and structures, which are less than 48 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 then 10% percent of the roof area.

(3)

Equipment storage buildings or cabinets shall comply with all applicable building codes.

For 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 accessory structure requirements as set forth in the Town Code.

Structures or cabinets shall be screened or landscaped from view of all properties which abut or are directly across the street from the structure or cabinet by a security fence eight feet in height or by a buffer of plant materials that effectively screens the view of the tower compound from property used for residential or planned residences.

§ 414-104 Removal of abandoned antennas and towers.

Any antenna or tower that is not operated for a continuous period of six months shall be considered abandoned ("no longer operative") and the owner of such antenna or tower shall remove the same within 90 calendar days of receipt of notice from the Town of West New York notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said 90 days shall be grounds for the town to require removal of the tower or antenna at the owners 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 town shall condition the issuance of any permit to construct a tower or antenna on the requirement that the property owner be required to remove the tower and restore the property as determined by the Town Engineer when the last user of said tower will no longer actively need the tower for its communications system.

Towers or antennas that are damaged or destroyed to the extent that the nonconforming provisions no longer apply under law may not be rebuilt without having to obtain approval from the approving authority and without having to meet separation requirements specified in § 414-102. 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 calendar 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 and handled in accordance with § 414-104A above.

West New York City Zoning Code

ARTICLE XVII