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Kevin Sheehan: Did New Jersey Really Eliminate Site Plan Review For Collocation Of Wireless Antenna? On January 17, 2012, New Jersey approved P.L. 2011, c. 199 which amends the Municipal Land Use Law (N.J.S.A. 40:55D-1, et. seq.) to eliminate the need for site plan approval for certain modifications to existing wire telecommunications facilities. Specifically, the amendment established N.J.S.A. 40:55D-46.2 which states that "[A]n application to collocate wireless communication equipment on a wireless communications support structure, or in an existing equipment compound shall not be subject to site plan review provided the application meets the following requirements:" (1) the wireless communications support structure shall have been previously granted all necessary approvals by the appropriate authority; (2) the proposed collocation shall not increase (a) the overall height of the structure by more than 10% of the original height; (b) the width of the structure; or (c) the square footage of the compound to an area greater than 2500 square feet; and (3) the proposed collocation complies with the final approval of the structure and all conditions attached thereto, and does not create a condition for which a variance would be required. Wireless communications support structure must be designed or capable of supporting wireless equipment including a monopole, lattice tower, guyed tower, water tower, utility pole or building. Although this statute appears to streamline permits for collocation of new antenna, in reality, it may not. First, many municipalities still do not have wireless ordinances and do not specifically list wireless communications facilities as a permitted use in any zoning district. Therefore, the existing sites were permitted through a use variance, and the municipalities require collocators to obtain a variance for the expansion of a nonconforming use. Since this is a variance, the new statute will not apply and a public hearing will be required. Second, most of the municipalities that do have wireless ordinances, or list wireless facilities within specific zones, permit them as conditional uses. A conditional use requires that a permit be granted by the Planning Board after a hearing. Although the site plan may be exempt, the carrier will still have to appear at a hearing. Additionally, a variance from the conditions of the conditional use requires a "d" variance from the Zoning Board. Finally, many existing compounds are located at the edge of a property because there are other, primary uses of the site. The towers and compounds are frequently located within the setback lines and the location of new equipment will require a setback variance. If a variance is required, site plan review is required. Although the statute is good in theory, it may not prevent the need for a hearing for new antenna in practice. The impact may be more significant on the upgrades carriers are currently doing to switch out existing antennas/cabinets that were already approved and constructed because new variances may not be required. If you have any questions about how the new statute will affect your site, please contact Kevin Sheehan, Shareholder and Co-Chair of the Real Estate Department, at ksheehan@parkermccay.com or 856-985-4020. |
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