Prompted by the Planning Board’s approval last spring of a cell tower to be placed on top of an existing PSE&G electric pole southeast of the intersection of Penn Lyle Road and Cedar Street, a group of residents approached the Township Council on August 31, urging it to revise the township ordinance to give residents more protection.
Specifically, the residents want the ordinance to prohibit new cell facilities from being developed within 1,000 feet of residential dwellings. They say recent revisions to the ordinance presented to the council by Planning Board attorney Gerald Muller and other planning officials is not enough.
The council, however, sent the ordinance back to the Planning Board with the direction to review new drafts of the ordinance submitted separately by both township officials and the residents themselves and come up with a recommended ordinance. The residents, however, said they were disappointed the matter could not be resolved at the August 31 meeting, and were worried the matter would fall victim to the politics of the upcoming November elections.
Once the matter comes out of the Planning Board’s ordinance review committee and is approved by the Planning Board, it will have to be introduced by council. A 35-day period will follow, in which the ordinance is sent back to the Planning Board before a public hearing and vote is taken by council to adopt it into law.
In May, the Planning Board had said it was handcuffed into approving the minor site plan approval for the T Mobile wireless communications facility on an existing electricity transmission tower because it complied with local ordinance. T-Mobile’s facility will consist of nine wireless communications antennas attached to a tower insert installed within the existing 111-foot tower, and extending 6.5 feet above.
Residents’ arguments had been based on disproving the actual need for the cell tower based on T Mobile’s argument that there is gap in service in the area. However, the issue of whether T Mobile actually needed the tower was deemed irrelevant by the Planning Board. Board members said the only issues they could consider were whether the cell tower had a negative impact on the area, which the board found it did not. Denying the application would leave the township open to litigation, board officials said.
Residents also argued then that there were many other existing poles close in proximity to the site on which the cell tower could be placed without having adverse effects.
But during testimony, T Mobile’s experts testified that the company had significant gaps in service, and the gap is centered around the site near the Penn Lyle/Cedar Street intersection. However, while the site would cover most of the gap, it is not going to cover all of the gap, which extends for miles to the east of the township.
Residents argued that T Mobile should have created a plan that would address the entire gap at once — with a tower in a location that would fix the gap in service for the entire area — instead of going site-by-site, creating more cell towers in various towns.
Officials took into consideration the residents’ argument when making changes to the ordinance, which was discussed at the council’s August 31 meeting. In the first revision, planning officials changed what is now considered a permitted use to locate a wireless transmissions facility on an existing tower to a conditional use.
And as part of that condition, cell carries are required to show that when the carriers make a judgment about where an antenna location should be, they must comprehensively look at their whole gap, in an effort to limit the number of towers that can be developed within the township.
Essentially, in order to do this, the carriers must show a gap in service and then demonstrate how they plan to address the gap using the fewest number of facilities, Muller explained to the council at the August 31 meeting.
There is the possibility is that “when they do it incrementally, that sets limits on where they could do the remaining towers,” he said. This way, an area might only see three towers, for example, as opposed to as many as five. He also said the council would have to make a decision regarding whether the township keeps the co-location provisions in the ordinance, which limits the developing of new cell facilities to existing towers.
He said he believes the township has the authority to include language in the ordinance that would require a telecommunications company to present a conceptual plan showing incrementally, where they intend to place cell towers.
But left out of the professionals’ draft was the 1,000-foot restrictions the residents were seeking. The federal Telecommunications Act of 1997 “pre-empted a great deal of authority that would be given to local” municipalities, explained Township Attorney Michael Herbert. Now local municipalities have restrictions placed in them in terms of what they can prohibit, explained Herbert, who said the township was involved in a Supreme Court case in 2002 in which the Planning Board denied the application by a company that wanted to build a new tower to replace an 80-foot tower in the research, office, manufacturing zone, where the cell tower was a conditional use. Herbert said a municipality must have substantial proof against the applicant about a gap in service.
The ordinance was subsequently revised, and the present ordinance was adopted in an attempt to meet the requirements in the decision, he said. He said that site restrictions can be placed on a cell tower as long as it does not prohibit them.
Planning Board attorney Gerald Muller also explained that if the 1,000-foot setbacks were implemented in the ordinance for any new facility, and because the ordinance already includes the co-location restriction, it would become a “prohibition in most of the town.” This is because “every tower, with the exception of one at the community college, is within 1,000 feet of a residential home,” Muller said.
Councilman Charles Morgan asked whether an ordinance from Princeton, which was reviewed by township officials in drafting a new ordinance for West Windsor, contained a 1,000-foot limitation. He also said that most of the cell phone companies have websites that boast their high coverage in most areas. He asked whether this could be used to prove that these companies do not have a gap in service, and therefore, prohibiting new cell facilities would not affect the protection given to them under the federal statute.
Muller said that “certainly if there is no gap, they should not be able to build a facility.” However, under the proposed ordinance, cell companies have to show there is a gap in service, not only in the sites, but with regard to their technologies. He said that there are gaps in services for two reasons — from either the cell tower sites being located too far apart, or for power levels associated with the volume of customers and newer technologies those customers are using.
As a company accumulates more subscribers, the companies must adjust the power levels to account for more users in smaller areas, Muller explained.
Morgan said that once there is no gap, there could be a slippery slope in terms of how often the cell companies want to install more facilities based on the increasing technology upgrades. He said he wanted to see an ordinance with “something more substantial” in terms of protection.
Council President George Borek said township officials have to find that balance, but also have to create an ordinance that is legally defensible. Herbert said that the Princeton ordinance does not include a 1,000-foot setback, but that it does have many restrictions.
Council members, including Morgan, said that the best place to begin developing an ordinance like this is at the Planning Board level, where its members can “do a thorough study” and “present the data.”
William Anderson, a resident of Howard Drive who spoke on behalf of more than a dozen concerned residents at the meeting, however, called the proposed ordinance atrocious. “We think that the ordinance has to be changed,” he said. “We think there is not a dime’s worth of difference,” between the current ordinance and the revised ordinance drafted by township officials.
Anderson said residents worried that without a 1,000-foot setback limitation to any residential homes, cell phone companies will use their technology to find ways to prove there are gaps in service in the township, despite the fact that their online maps show full coverage throughout West Windsor. Then, if they were to submit a site plan application under the ordinance proposed by township officials, the Planning Board “will do exactly what they said to us [with the T-Mobile tower approval] and say, ‘Well, our hands are tied.’”
Anderson also said that the residents never said they would not want cell facilities developed on existing PSE&G and JCP&L towers, but rather that “we want cell phone antennas prohibited within 1,000 feet of our homes,” or there needs to be a use variance.
He also complained that Planning Board Chairman Marvin Gardner told him that the process would take six to eight months at the Planning Board level. “We see our issue going down in flames,” said Anderson. “What’s happening is you’re giving us the kiss of death. We don’t want this.”
Anderson’s claim prompted Gardner to drive from his home, where he was watching a live feed of the meeting on the township’s cable channel, to the meeting to refute the claim. Gardner said he never spoke to Anderson on the phone and that he spoke to another resident, whom he told he could not say how long the process would take. He also refuted a later claim that he told the resident that Planning Board members could not talk to residents on the phone about certain issues. Rather, he said, Planning Board members cannot discuss the details of specific site plan applications before a decision on those applications are made, so as to avoid prejudicing the decision.
Anderson said residents also did not want the issue to drag on until November, where the issue could become the subject of election campaigns. Andrew Hersh, who plans to run against Ciccone for a council seat in November, however, spoke on behalf of the residents in the public comment section of the meeting, urging the council to include the 1,000-foot setback.
Councilwoman Linda Geevers said she felt the process was already political because of Hersh’s comments and that the only thing the council “promised is that we would listen,” and now, the council has decided to send the matter to the board for further review.
Anderson urged the council to send the proposed ordinance with the 1,000-foot setback to the Planning Board. “I expect under this, that there are stations that are outside of the 1,00-foot mark.”
But Herbert said that when an ordinance is adopted, it will be based on technical evidence.
Other residents voiced their concern. Amy Chanson, of Columbia Place, said that Princeton does not have a 1,000-foot setback limitation, but that it is possible they do not have one “because they don’t have existing towers in residential areas.” She said the Planning Board told residents that the matter would go before council, “and now you’re saying it has to go back to the Planning Board.”
Pam Bainbridge, of Penn Lyle Road, said she would “just like my home protected.” When she bought her house, she said she was aware of the cell towers located in the area. However, “what we didn’t anticipate was all of this stuff piling up on top of it.”
Once the matter comes out of the Planning Board’s ordinance review committee and is vetted and approved by the Planning Board, it will have to be introduced by council. A 35-day period will follow, during which the ordinance is sent back to the Planning Board before a public hearing and a vote is taken by council to adopt it into law.
