After a public hearing spanning more than three hours, the West Windsor Township Council adopted, 4-1, an ordinance that imposes stricter regulations on new cell phone facilities.
The ordinance, adopted April 6, continued to draw criticism from residents who thought the new regulations weren’t strict enough, and from Verizon Wireless, which took issue with some of the technicalities in the language of the ordinance — including the new requirement that cell phone companies place their equipment into cabinets and not shelters.
Councilman Charles Morgan voted against the ordinance, pointing to the variety of constituents who had different problems with the ordinance and what he said was a need for further compromise. He also wanted more time to vet the issues since many of the materials were distributed while he was out of the country on a recent vacation.
He said that the idea of compromise is coming to a resolution that both sides can tolerate, but in this case, neither side is willing to live with the solution. “I don’t hear that anybody is happy with what we’re proposing,” said Morgan. “Nobody likes this.”
The adoption of the ordinance ended a year-long process at the Planning Board and council, where residents lobbied for tighter restrictions. They wanted to bar new cell phone towers or antennas within 1,000 feet of homes, but such a provision was never included in any version of the ordinance.
After ringing up some $20,000 in professional fees studying the matter, the board voted in January to send the ordinance to the council. It left the “policy decision” on the 1,000-foot restriction up to the governing body because the council gave specific direction to the board to stick to a collocation policy, limiting new facilities to current towers.
In the board’s previous discussions, residents complained about noise pollution created by allowing wireless communications facilities to operate near their homes. Originally, the board included language that prohibited new equipment to operate during normal hours if it created additional noise at the adjoining property lines. But because the language was deemed “too ambiguous,” the board rewrote the language.
Now the ordinance requires cell phone companies to comply with noise levels specified under the township’s noise ordinance, which allows up to 50 decibels of noise at night and up to 55 decibels during the day.
Taking a page out of the board’s recent approval of a T-Mobile application last May (which sparked the ordinance revision), the board also prohibited equipment shelters over new wireless communications facilities, upsetting some of the cell phone company advocates.
The ordinance permits new wireless communications facilities on the roof of or in office buildings only, and if they are on the roof, they must be screened. The collocation of facilities is permitted on and at the base of existing towers, but changes this use from a permitted use to a conditional use.
Under the ordinance, applicants are required to provide an analysis for the need for the service. The alternative analysis must show that there are not suitable alternatives with less of a visual impact.
The board rejected the idea of including a prohibition on wireless communication facilities from being located within 1,000 feet of a home, maintaining that such a regulation would be too restrictive and in violation of federal communications regulations. The restriction would “prohibit wireless facilities on virtually all towers,” they said.
Residents had presented the council with a petition they have been circulating for months with more than 400 signatures opposing the ordinance. Residents also argued that West Windsor’s ordinance did not afford them the same protection as similar laws in Princeton and Millstone. They also argued that the ordinance allowed for “unlimited future need” and allowed noise at levels comparable to a vacuum cleaner placed three feet from their homes, or equivalent to a busy street.
During the public hearing on April 6, residents suggested some changes to the ordinance. Auburn Place resident Richard Pizzo suggested creating a policy that created monopoles — or new cell phone towers — in two locations in the town away from residents that could be carefully planned to satisfy wireless carriers’ future needs.
“I’d rather see a monopole on Route 571 than along the PSE&G right-of-way,” and not running along residential homes, he said. He also suggested a map could be created based on projected transmission requirements. “I think, a couple of monopoles, I would not consider an immense proliferation,” he said.
Resident William Andersen said he felt the final version of the ordinance was worse than what the Planning Board originally began drafting. “It can be improved if you are willing to look at the impact you are imposing on people.”
Pointing to the language taken from the township’s noise control ordinance, he said that the T-Mobile application did not require noise at all, and that the township should prohibit noise.
“The Millstone ordinance doesn’t require noise at all,” he said. “Don’t cave to Verizon. Millstone’s ordinance is fine.”
Andersen also argued that the ordinance allows the wireless communications antennas to continuously be placed in town with no cap, and that the 12-foot minimum continually allowed a new antenna to be placed 12 feet above an existing one — perpetually — meaning that “12 can be placed on top of 12, on top of 12.”
“This ordinance needs a lot of work,” he said.
One resident referenced the priorities for locations of wireless facilities specified in the Princeton ordinance. She suggested putting a first priority on township-owned property, a second on structures owned by the school district, and a third on existing towers.
MaryAnn Doran, a retired real estate broker, said that cell phone towers and facilities decrease the value of a home near the structures. Other residents cited health and safety concerns.
Resident James Krause, referring to Morgan’s comments that he had been out of the country for a few weeks and had little time to review the issues surrounding the ordinance, said, “If he feels like he’s been in Brazil, I feel like I’ve been in Antarctica,”
He did not understand why the township could not make the ordinance more restrictive. To fix up the walking paths along the PSE&G right-of-way only to line it with cell phone facilities seems “very contradictory. I just hope we put them somewhere where we can’t see them.”
Officials from Verizon spoke in regard to meeting the noise requirements imposed by the township. Verizon’s engineer Anthony Suppa said carriers will find a way to meet those requirements. However, he said Verizon keeps its equipment in shelters because they accommodate pending FCC regulations that require wireless communication facilities to have capability for eight hours of battery backup in case of a power outage.
Wireless providers using cabinets can only provide two to three hours of battery backup, he said. Shelters are also more secure than cabinets, he said.
Michael Beck, an attorney for Verizon Wireless criticized the leniency given to towers proposed to be placed on commercial buildings where current towers do not exist. In that case, no planning approval is required if providers meet the conditions. For placement on existing towers, though, wireless carriers have to get planning approval, and in some cases, zoning approval. He said this discourages the policy of collocation the township is trying to preserve.
“The ordinance is ambiguous in many instances and contradictory in others,” he said.
Township professionals, however, disputed the residents’ arguments. Gerald Muller said that any health issues fall to the jurisdiction of the FCC, which has established health requirements that the cell companies must meet.
With regard to the suggestion that the ordinance allow for the construction of new poles, or monopoles, planning and allowing as few as two poles would not be sufficient. “As demands increase over time, it’s very doubtful that it will fulfill those needs,” he said.
As for noise levels, Muller said the township could include language that prohibits any “perceptible noise,” similar to the Millstone ordinance, but Township Attorney Michael Herbert said the change would be substantive.
Any substantive changes would require the ordinance to be sent back to the Planning Board for review and then reintroduced and adopted by council at a later date, prolonging the process.
Officials also said that the township’s municipal noise ordinance, which was included in the ordinance, is more restrictive than state standards.
Muller said the ordinance does not permit antennas to increasingly be placed higher in 12-foot increments and that all carriers will be held to the same 12-foot limitation.
With regard to the list of priorities suggested by one of the residents, Muller said the ordinance already included priorities: the town allows new structures to be placed on commercial property — away from residences, where they are out of site — without planning board approval to make that option more favorable. It also allows up to 200 new antennas on the tower located on the municipal building.
Further, if carriers do not choose any of those two options, they will be required to provide a need analysis for collocation on existing towers in residential areas.
“We think we set up a priority list that makes a lot of sense,” said Muller. “If anything, it should enhance values,” Muller said, pointing to the new restrictions. His comment incited groans of, “No Way,” from the public.
Muller explained that the collocation policy has already been in place for 12 years, and the new amendments only make the ordinance more stringent.
With regard to the requirement for the equipment to be placed in cabinets and not equipment shelters, Muller said the ordinance allows for wireless communication facilities to seek variances if they have a valid reason for needing one.
When Councilwoman Diane Ciccone asked where towers would be located if the township did away with its collocation policy, Christine Malone, the township’s wireless consultant, said an analysis would have to be conducted to plan the best locations for the new towers. That could cost the town up to $120,000, as it did in Southampton, another town for which she is a consultant. “It would be a matter of doing an analysis for the towers,” she said.
Muller said he thought the ordinance would withstand any legal challenges. Herbert suggested the council adopt the ordinance as is and allow noise restrictions to be included in the conditions of individual site plan approvals — to avoid making substantive changes to the ordinance at the public hearing.
Before a vote on closing the public hearing, Morgan made a motion to continue the public hearing at a future meeting so that he could have time to sit down with the group of opposing residents, wireless communication companies, Planning Board attorney Gerald Muller, and Land Use Manager Sam Surtees to try to work out a solution. He also said the continuation would give him more time to view the materials.
“Once you open up an ordinance, you open up the warts no one’s noticed before,” he said, adding that, based on his limited review of supporting materials, he might not think collocation is the best policy after all. Complaints from both the residents and cell phone companies show there is something wrong with the ordinance. “Where there’s smoke, there’s fire, and if we don’t deal with it, we’re not serving our constituents.”
However, Councilman Kamal Khanna expressed a different view. “I think all of these professionals have done extensive studies,” he said, adding that the debate continues over the same issues. “We’ve deliberated enough. We should put it to vote.”
Ciccone, who was concerned about the possibility that the township could be sued as a result of its new ordinance, originally voted to second Morgan’s motion so there could be further discussion over continuing the hearing, but when it came time to vote on whether to do so, she abstained. Councilwoman Linda Geevers also abstained. Council President George Borek and Khanna voted against extending the public hearing, and Morgan voted in favor, failing the motion.
The council then voted 4-1 to close the public hearing and 4-1 to adopt the ordinance, with Morgan voting against both.
