ASSEMBLY, No. 3065

 

STATE OF NEW JERSEY

 

210th LEGISLATURE

 

INTRODUCED DECEMBER 9, 2002

 

 

Sponsored by:

Assemblyman MATT AHEARN

District 38 (Bergen)

 

Co-Sponsored by:

Assemblyman Geist

 

 

 

 

SYNOPSIS

    Prohibits municipalities from adopting zoning ordinances to prohibit construction or use of antenna structures by federally licensed amateur radio operators.

 

CURRENT VERSION OF TEXT

    As introduced.

 

(Sponsorship Updated As Of: 3/14/2003)


An Act clarifying municipal power to zone with respect to certain antenna structures and amending P.L.1975, c.291.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. Section 49 of P.L.1975, c.291 (C.40:55D-62) is amended to read as follows:

    49. Power to zone. a. The governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon. Such ordinance shall be adopted after the planning board has adopted the land use plan element and the housing plan element of a master plan, and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements; provided that the governing body may adopt a zoning ordinance or amendment or revision thereto which in whole or part is inconsistent with or not designed to effectuate the land use plan element and the housing plan element, but only by affirmative vote of a majority of the full authorized membership of the governing body, with the reasons of the governing body for so acting set forth in a resolution and recorded in its minutes when adopting such a zoning ordinance; and provided further that, notwithstanding anything aforesaid, the governing body may adopt an interim zoning ordinance pursuant to subsection b. of section 77 of P.L.1975, c.291 (C.40:55D-90).

    The zoning ordinance shall be drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses and to encourage the most appropriate use of land. The regulations in the zoning ordinance shall be uniform throughout each district for each class or kind of buildings or other structure or uses of land, including planned unit development, planned unit residential development and residential cluster, but the regulations in one district may differ from those in other districts.

    b. No zoning ordinance and no amendment or revision to any zoning ordinance shall be submitted to or adopted by initiative or referendum.

    c. The zoning ordinance shall provide for the regulation of any airport safety zones delineated under the "Air Safety and Zoning Act of 1983," P.L.1983, c.260 (C.6:1-80 et seq.), in conformity with standards promulgated by the Commissioner of Transportation.

    d. The zoning ordinance shall provide for the regulation of land adjacent to State highways in conformity with the State highway access management code adopted by the Commissioner of Transportation under section 3 of the "State Highway Access Management Act," P.L.1989, c.32 (C.27:7-91), for the regulation of land with access to county roads and highways in conformity with any access management code adopted by the county under R.S.27:16-1 and for the regulation of land with access to municipal streets and highways in conformity with any municipal access management code adopted under R.S.40:67-1. This subsection shall not be construed as requiring a zoning ordinance to establish minimum lot sizes or minimum frontage requirements for lots adjacent to but restricted from access to a State highway.

    e. No governing body shall adopt a zoning ordinance or regulation that prohibits or has the effect of prohibiting the construction, maintenance or use of an antenna and support structure therefor by a federally licensed amateur radio operator. Zoning ordinances and regulations may reasonably regulate the location and height of those antenna structures for the purposes of health, safety or aesthetics; provided, however, that those ordinances and regulations permit sufficient height of those antennas and support structures so as to reasonably accommodate amateur radio communications by federally licensed amateur radio operators. Restrictions imposed on such antennas and support structures by ordinances and regulations shall constitute the minimum practicable regulation necessary to accomplish the legitimate purposes of the governing body enacting that ordinance or regulation. For purposes of this section it is presumed that any ordinance or regulation that prohibits or has the effect of prohibiting any antenna support structure that is 70 feet or less in height above ground level, exclusive of any antenna upon the structure, is unreasonable.

(cf: P.L.1991, c.445, s.9)

 

    2. This act shall take effect immediately.

 

 

STATEMENT

 

    This bill would codify PRB-1, a 1985 declaratory ruling establishing the policy of the Federal Communications Commission with respect to the power of state and local land use authorities to restrict the siting of antennas and antenna support structures constructed or used by federally licensed amateur radio operators.

    According to PRB-1, local zoning authorities cannot preclude amateur service communications, but must reasonably accommodate those facilities and enact the "minimum practicable regulation to accomplish the state or local authority's legitimate purpose." [47 C.F.R. Section 97.15(b)]. Local governments can regulate land uses based on height, safety and aesthetic concerns, but the regulations cannot be so restrictive that they preclude communications by amateur radio, fail to reasonably accommodate such antenna structures, or impose more than the minimum practicable regulation of such structures, under PRB-1.

    For technical reasons related to radio frequencies used by amateur radio operators in support of federal, state, and local emergency communications, training for such operations, and standard modes of interstate and intercontinental radio communications used by federally licensed amateur radio operators, any regulation that prohibits or has the effect of prohibiting an antenna support structure less than 70 feet in height will preclude or unreasonably hinder such communications by licensed amateur radio stations.

    According to American Radio Relay League (ARRL), which represents the interests of amateur radio operators, the following states have codified PRB-1: Alaska, Florida, Idaho, Louisiana, Maine, Massachusetts, Nevada, New Hampshire, New Mexico, Oregon, Texas, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Two of those states, Virginia and Oregon, specify heights below which local governments in those states may not regulate.

    In limiting the power of municipalities to prohibit the construction or use of antenna structures by federally licensed amateur radio operators, this bill codifies PRB-1. In so doing, this bill attempts to protect those municipalities that might otherwise prohibit or unreasonably regulate such structures from the litigation that would occur because of the preemptive effect of PRB-1. At the same time, this policy enhances the State's available pool of emergency communications volunteer operators and stations that can provide reliable emergency communications at no cost to the State or municipal governments.