[W2CRA] TEXT of Proposed New Jersey PRB-1 Bill

[John Crovelli]

Here is the complete text of Assembly Bill No. 3065 which would codify PRB-1 
federal pre-emption into NJ State Law.

ASSEMBLY, No. 3065
STATE OF NEW JERSEY
210th LEGISLATURE
INTRODUCED DECEMBER 9, 2002


Sponsored by:
Assemblyman MATT AHEARN
District 38 (Bergen)


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.

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.






_________________________________________________________________
Add photos to your messages with MSN 8. Get 2 months FREE*. 
http://join.msn.com/?page=features/featuredemail