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September 03, 2008
by Daniel O'Keefe
At the Board of Adjustment attorney’s recommendation, Rutherford officials are considering altering the borough’s ordinance governing the placement of cell towers and antennae. The proposed change would make private and public-owned property equally eligible for wireless communication equipment.
In a letter dated July 15, 2008 from Board of Adjustment attorney Gary Cucchiara, he states, "In Sprint Spectrum, L.P. v. Borough of Ringwood …the court held that a zoning ordinance which permitted a telecommunications facility only on land owned or leased by the municipality, provided an economic advantage in favor of the municipality which could not advance any legitimate purpose of zoning, and therefore was unlawful and unconstitutional."
Cell towers and antennae are currently only a permitted use on borough property. Everywhere else they are a conditional use. In other words, other than getting borough approval, there are no established restrictions for towers on property owned by the borough, whereas everywhere else towers must meet specified restrictions. This could be construed as giving the borough an advantage of the sort mentioned in Cucchiara’s letter. The proposed changes to the ordinance would strike the section that makes cell towers a permitted use on borough property, making cell towers a conditional use anywhere in the borough.
In March, an application was presented by Omnipoint Communications (the company that provides cell service as T-Mobile) to the Board of Adjustment for eight wireless communications antennae to be put on top of the apartment building at 270 Union Ave. Several variances were needed, including one to allow the use in a residential zone, where it is normally prohibited, and one to allow it to exceed the height restrictions for that zone. Over the course of the meeting, several board members inquired as to whether the company had considered placing the antennae on the nearby West End fire station property at the corner of Union Avenue and Wells Place.
Constantine Stamos, who represented Omnipoint at the meeting, said that the company had contacted the borough but that there didn’t appear to be any interest. Furthermore, Syed Mujdaba, an engineer for Omnipoint, indicated that the topography of the fire station site would require a significantly taller tower. Nevertheless, the board has now put off making a decision on the application twice, once in March and again July, requesting that Omnipoint provide more information about other possible locations.
Though he wouldn’t comment on whether the ordinance as it currently stands leaves the borough open to possible litigation from Omnipoint or others, borough attorney Lane Biviano said the proposed changes would be introduced in September.
"Gary [Cucchiara] recommends we do it and I concur," he said. "[This] doesn’t mean something’s necessarily on the horizon, but it doesn’t hurt to [look at the ordinance] either."
The letter also recommends the council consider amending the part of the ordinance, which establishes height restrictions. Currently the ordinance restricts antennae from exceeding the normal height restrictions for the building on which it’s located.
"In practically every application for a wireless communication facility presented to the Board of Adjustment, the selected site involves a building which exceeds the height in its particular zone," said Cucchiara. The Union Avenue apartment building application currently before the board falls within this description. At just under 48 feet tall, the building itself is already over the 35-foot height restriction for its zone; the tallest proposed cell antennae would extend an additional seven feet above that.