by William M. Cox, Esq.
NJPO General Counsel Emeritus
Dolan & Dolan, Newton

Just after World War II, planners in New Jersey were confronted by two changes which engendered much heat and much litigation. Eventually solutions came about either legislatively or by common acceptance.

The television antenna and the house trailer assaulted the aesthetic sensibilities of residents in the late 1940s and early 1950s. As a result of court decisions and legislation, house trailers were confined largely to trailer parks, but prefabricated buildings were recognized and protected legislatively. The television antenna, which commenced as a prestige symbol, soon became so prevalent as to become non-observable. A few decades later the satellite dish antenna became the subject of local regulation designed to eliminate rather than permit that use until the federal government intervened and preempted local controls except to a very limited extent.

The problems associated with cellular towers is but the latest in a series of similar planning problems. Most municipalities have, as in the past, reacted by attempting to prohibit such towers altogether. These attempts have, by and large, been stricken by the courts, which have found that such cellular communication towers are "inherently beneficial."

Some few municipalities, however, have planned for the location of such towers to the extent that such planning is possible and it is this course which New Jersey Planning Officials urges upon all of its member municipalities. Bearing in mind that just as in the case of the satellite dish antennae, which were once large and unattractive but which have now shrunk in size so that they are hardly noticeable, we are told that cellular communications towers will, with the march of technological improvements, eventually be replaced by more sophisticated, less noticeable installations.

The purpose of this article is to propose that municipalities ought, instead of wasting tax dollars attempting to keep out cellular communication towers, commence to plan for such towers to the extent possible and to regulate them as conditional uses. This can be done by a combination of enactments:

Master Plan. Provision for the location of all types of communication equipment, including cellular communication towers, should be made part of the Master Plan. Recognizing that the location of such towers, in order to he effective, is limited to certain types of locations, the idea of planning for such locations is nevertheless a goal sought to be obtained.

Ordinance Regulations. Certain regulations are capable of being set forth in ordinance provisions. Perhaps the most practical form of regulation would be to permit cellular communications towers as conditional uses. The conditions established for such a use could include, for residential districts, (a) minimum distances from residential structures, public parks and schools, (b) that any such cellular telephone facility should be located, where possible, on existing structures (which would include existing cellular telephone facilities, or other towers or buildings), (c) that all setback requirements of the zoning district must be complied with, and (d) that landscaping and finishing compatible with residential uses should be installed.

For commercial industrial or other nonresidential districts conditions could include: (a) requiring that a cellular telephone facility must, where possible, be located on existing structures which may include another cellular telephone tower. Sharing of facilities should be required where feasible (b) increased height limits for such structures should be provided setting forth as a condition a specific height limits or cellular telephone or other communication facilities (c) all set back requirements of the zone should be complied with and (d) the location must be landscaped and finished in a manner compatible with the surrounding area.

Regulations should be tailored to provide that the facilities must be aesthetically and architecturally compatible with the environment. For example, if located in a residential district, the base of the tower and any storage building should be required to use residentially compatible materials such as wood, brick or stucco. Moreover, the tower itself, where feasible, may be required to be designed to resemble a woody tree with a single trunk and branches on its upper part. And finally co-location of towers should be required, except where an applicant can show that he has exhausted all possible avenues for sharing space on existing towers. It must be recognized that in some cases an existing tower's structural capacity will be insufficient and in addition, there are other factors that may determine feasibility of using existing towers.

Finally, provisions should be made for the removal of towers when they are obsolete and no longer needed.

Some municipalities in New Jersey have already moved in this direction and it is evident that from the municipal standpoint, it is foolish to waste taxpayers' dollars to fight losing court battles rather than approach the problem from the standpoint of reasonable legislative regulatory enactments. The NJPO believes that good planning on the municipal level dictates that the response of the municipalities and municipal agencies should be positive, evidencing itself in reasonable regulations to accommodate communications towers in appropriate locations and subject to reasonable regulations.