Mobile fifth-generation (“5G”) wireless communications systems are the next upgrade of wireless technology, which the wireless industry promises will provide faster broadband speeds, greater capacity and better reliability.  To deploy this technology, the industry will use new infrastructure referred to as “small cell” or “small wireless facilities.”  Small cells collect and target signals a short distance from one another and, therefore, require collocating small wireless facilities closer to one another than has been the case with 3G and 4G wireless technology.

This has led the Federal Communications Commission (“FCC”) to issue a Declaratory Ruling, Report and Order – FCC 18-133A1 – titled “Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Development” (the “2018 Report and Order”).  Adopted on September 26, 2018, the 2018 Report and Order went into effect on January 14, 2019, with the stated purpose of facilitating the deployment of 5G technology.  According to the FCC, eighty percent of 5G deployments will involve densely located small wireless facilities, in contrast to the more spread out and taller towers and structures supporting 3G and 4G cell antennas. The 2018 Report and Order will affect all New Jersey municipalities, and should be understood by all local zoning and planning officials, departments and boards.  This article will lay out the basics of the 2018 Report and Order and offer a few recommendations for consideration.

For the full article click here: FCC 2018 Report and Order re: Small Wireless Facilities

Planning Boards when hearing a development application and/or when conducting a hearing on a master plan adoption or amendment are acting in a “quasi-judicial” capacity.  (While the master plan itself is a legislative document, the hearing on adoption or amendment of the master plan is subject to the same requirements as are hearings on development applications pursuant to N.J.S.A. 40:55D-10a so the Planning Board acts in a “quasi-judicial capacity in conducting the hearing.)  Zoning Boards of Adjustment (with the exception of preparation and adoption of the annual report) always act in a “quasi-judicial” capacity.

For the full article click here: Guidelines for Quasi-Judicial Bodies

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This article concludes that Board members should refrain from all electronic communications and independent computerized research during the hearing process on applications and master plans.

For the full article click here: Use of Social Media by Board Members During the Hearing Process

Summary:

The FCC on October 17, 2014 issued a Report and Order which, among other things, adopts new collocation rules intended to clarify and implement section 6409 of the Collocation Act, and to  establish timeframes within which State and local government agencies must act on “eligible facilities” applications submitted under that act.  In addition the Order clarifies and/modifies the timeframes within which local governments must act on other facility siting applications under the federal Telecommunications Act of 1996.  This article primarily focuses on the new collocation rules for applications under the Collocation Act, but also examines the new timeframes for other “facilities siting” applications.

For the full article click here: Order and Rules Governing Wireless Communication Collocation

This article addresses the issue of whether local land use boards may hold meetings and/or hearings via telephone or through video communications equipment and, if so, under what circumstances. Exploration of this issue is quite timely as, during the course of the multiple snow storms in February, 2014, I received a number of inquiries from members of the various land use boards I represent as to the legality of electronic participation in land use board meetings and hearings.

For the full article click here: The New Jersey Planner Mar-Apr 2014

Vacancies on local municipal boards, including planning boards, are governed by N.J.S.A. 40A:9-12.1.  The section relevant to the present inquiry provides:

The office of any person appointed to a specified term … by the governing body shall be deemed vacant:

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g. In the case of a member of a board whenever the member, without being excused by a majority of the authorized members of such body, fails to attend and participate at meetings of such body for a period of 8 consecutive weeks, or for four consecutive regular meetings, whichever shall be of longer duration, at the conclusion of such period, provided that such body shall notify the appointing authority, in writing, of such determination; provided, further, that such board may refuse to excuse only with respect to those failures to attend and participate which are not due to legitimate illness.

More simply stated, a board member’s seat may be deemed vacant if the board notifies the governing body in writing that it refuses to excuse a member’s continuous absence over the longer of eight consecutive weeks or four consecutive regular meetings. The board may excuse any absence by a vote of the majority of the authorized membership and must excuse any absence caused by legitimate illness. The vacancy would not be automatic i the board would have to notify the governing body that the absences have occurred and have not been excused.

For the full article click here: Municipal Law Review Mar-1992

N.J.S.A 40:55D-52 provides in subsection a, through the incorporation of N.J.S.A. 40:55D-49a, that the general terms and conditions on which preliminary approval was granted, including but not limited to use variances, layout and design standards for streets, curbs and sidewalks, lot size, yard dimensions and off-tract improvements, “shall not be changed for a period of two years after the date on which the resolution of final approval is adopted …”.  N.J.S.A 40:55D-52 further authorizes the granting of extensions of the period of final site plan and subdivision protection.  This article will examine a number of issues arising under the statute.

For the full article click here: Municipal Law Review Dec-1992

May a Board of Adjustment reconsider its 4-2 vote in favor of a “d” variance which resulted in denial of the variance so as to allow a seventh member of the Board the opportunity to read a transcript of the hearing, deliberate and vote on the application? That was the question before the Law Division for consideration in M & M Machine Shop v. Raritan Township Board of Adjustment, Docket No. HNT-L-654- 95 P.W., and Peter and Mary Whitney v. Raritan Township Board of Adjustment, Docket No. HNT-L-655-95 P.W., a consolidated litigation which was recently settled by the private parties with the approval of the Board and the Court. The authors will review the facts of the case and the applicable law and will then present their opinions on the issues involved.

M & M Machine Shop illegally operated for over 20 years a metal fabrication business in a detached garage behind a residence located on a lot situated in a residential zone. Peter and Mary Whitney, residents located approximately one-half mile away but on the same street, had been aware of this illegal operation for some time but had not contested or complained about the use as they could not hear or see it from their property. As a result of an unrelated dispute between the parties, Whitney notified the Township Zoning Officer of the operation and. as a result, a municipal court summons was issued. M & M Machine Shop plead guilty, paid a fine and, at the suggestion of the municipal court judge, applied to the Board of Adjustment for a “d” variance to allow it to properly establish the metal fabrication operation.

For the full article click here: Municipal Law Review (1999)

Our courts have held that it is not necessary that Board members deliberate on an application at all before voting on a motion to grant or deny relief. Scully-Bgzarth Post v. Planning Board, 362 N.J. Super. 296,312 (App. Div. 20A3), certif. denied. 178 N.J. 34 (2003). It is legally sufficient that the application be approved or denied by voice vote with no statement of reasons being placed on the record so long as a resolution is thereafter adopted setting forth a clear statement of reasons for the action taken. Id. Citing Scully-Bozarth, the Appellate Division recently explained, “where . . board members voted on an

application for development without a verbal discussion, we held that a verbal discussion in that circumstance is not mandatory, as long as the ultimate resolution, which will serve as the official statement of the board’s findings and conclusions, is furnished to the board members in advance of the time they will vote, to provide them ample time to study it and, if they deem it appropriate, request clarification.

For full article click here: The New Jersey Planner (2012)

This article addresses the question of whether “c” bulk variances under N.J.S.A. 40:55D-70c are “subsumed” in the grant of a “d(1)” use variance under N.J.S.A. 40:55D- 70d(1). In other words, is a “c” bulk variance necessarily included or encompassed as a component element within a “d(1)” use variance?3

There appears to be just one Supreme Court opinion and only four Appellate Division opinions that deal directly or indirectly with this issue and they create more confusion than clarity as to precisely what is intended when the courts have at times referred to a “c” bulk variance as being “subsumed” in the grant of a “d” use variance.

For the full article click here: Are ‘C’ Bulk Variances Subsumed In ‘D’ Use Variances?

Summary:

It makes good sense for telecommunication companies to place as many antennas as possible on existing towers, where it is technically and economically feasible. This reduces the need to build new towers.  It helps the tower owners to maximize their assets by adding as many tenants as possible.  This process, called collocation, is encouraged by the FCC.

With this in mind, two recent enactments, one state and one federal, regarding the collocation of wireless communications equipment on existing structures and modifications to existing towers warrant attention by municipal zoning and construction officials and land use boards.

For the full article click here: New Jersey Municipalities magazine March 2013

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Municipal agencies are about to face a significant change in the law.  The comment, and within article, is prompted by the adoption of the P.L. 2010, c. 9, which amends the Municipal Land Use Law to establish N.J.S.A 40:55D-10.5, effective May 5, 2011.  The Act provides:

Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development.  Any provisions of an ordinance, except for those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.

For the full article click here: New Jersey Municipalities magazine, Nov-2010

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(N.J.S.A. 40:55D-90), the section of the Municipal Land Use Law (“MLUL”) on moratoriums and interim zoning, is divided into subsections (a) and (b). The expiration of subsection (b) of the statute in 1979 created confusion among land use practitioners and municipal attorneys with respect to interpretations of the law regarding zoning moratoriums. Some believed that all zoning moratoriums were prohibited. Others believed that all reasonable zoning moratoriums were permuted subject to limitations imposed by case law. For this reason, Superior Court Judge Eugene D. Serpentelli called for the state Legislature to clarify the law in N.J. Shore Builders Assoc v. Dover Township Committee, 191 N.J. Super, 631 (Law Div. 1983) (“Dover Township”).

The state Legislature answered this call for clarification in 1986 by amending subsection (b) of (N.J.S.A. 40:55D-90). While new issues have arisen under this amendment, one thing is now clear: all zoning moratoriums are now prohibited except under very limited circumstances. This article will explore the law regarding zoning moratoriums both before and after the recent amendment.

For the full article click here: Moratorium_Ordinances_NJL_Summer_1998