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HomeMy WebLinkAboutCell Tower Siting: Zoning and Planning Law Implications PA 4 7 ." , . . . r i I JUL 1 9 2000 CELL TOWER SITING: ZONING AND PLANNING LAW IMPLICATIONS International Municipal Lawyers Associations Mid-Year Seminar • Omni Shoreham Hotel Washington, DC April 10, 2000 Presented by:John C. Gillespie, Esquire PARKER, McCAY & CRISCUOLO Three Greentree Centre * Route 73 and Greentree Road Marlton, NJ 08053 I I. Background. As anyone who has stood on the tenth floor of any building can attest, cellular towers have come to define "the new American landscape." As far as the eye can see, in almost any area throughout the country, such towers are visible in all directions. The Federal Communications Commission ( "FCC ") estimates that there are now approximately 100,000 such towers constructed across the country. Where did they come from? How did they get there? The 1993 Omnibus Budget Reconciliation Act established procedures to be used by the FCC for licensing personal communications systems ( "PCS "). In 1994, the FCC utilized a competitive bidding procedure by which it raised over $20 billion in the auction of its PCS licenses. The nation is divided into 734 markets and the FCC grants licenses within each market. These licensees, generally large corporations, then deal with other companies who wish to enter that market. To expedite recovery of their capital investment (i.e., the billions of dollars they paid for these licenses), these corporations quickly filed applications for zoning, special use, and building permits to construct the towers necessary to transmit frequencies. Local governments, unfamiliar with this new technology, and protective of the "not in my backyard" (NIMBY) mentality of its residents (and often its elected officials) regularly denied the applications on grounds of, for example, aesthetics, radio frequency emissions, environmental effects, and the like. The telecommunications industry, tired of confronting different rules and interference from the 30,000 different zoning jurisdictions throughout the United States, heavily lobbied Congress for assistance in dealing with local governments. As a result, the Telecommunications Act of 1996 was enacted. Although initially intended by the industry to deny local governments any role in the siting of transmission towers and associated equipment shelters, the Act actually reposes in local government some regulatory authority over the siting of cellular towers. II. The Provisions of the Act. 47 USC Section 332 (c)(7) establishes the Local Zoning Authority. Subparagraph (A) provides that "except as provided in this paragraph, nothing in this chapter shall limit 2 or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 USC Section 332(c)(7)(B), does however, so limit the state or local government as follows: "(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any state or local government or instrumentality thereof - - (I) Shall not unreasonably discriminate among providers of functionally equivalent services; and (II) Shall not prohibit or have the effect of prohibiting the provision of personal wireless services. "(ii) A state or local government or instrumentality thereof shall act on any request or authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking in account the nature and scope of such request. "(iii) Any decision by a state or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. "(iv) No state or local government or instrumentality thereof may regulate the placement, construction and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emission to the extent that such facilities comply with the Commission's regulations concerning such emissions. "(v) Any person adversely affected by any final action or failure to act by a state or local government or any instrumentality thereof that is 3 inconsistent with this subparagraph may, within thirty (30) days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a state or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief." Given the proliferation of cellular towers over the last few years, local agencies generally do not discriminate against providers of functionally equivalent services, and Section 332(c)(7)(B)(i)(I) is not generally implicated. Thus, this presentation will not address that prohibition. Nor will this paper address the other prohibitions in this section as they really have little to do with the actual siting of towers. Rather, they relate to the governmental response to siting applications. For example, 332(c)(7)(B)(ii) requires the governmental entity to respond to the request `within a reasonable period of time after the request is duly filed "; and subparagraph (iii) requires the governmental response to be "in writing and supported by substantial evidence contained in a written record." Subsubparagraph (iv) precludes governmental entities from regulating towers based upon environmental effects of radio frequency emissions, so long as those emissions comply with the FCC's regulations governing same. Finally, subsubparagraph (v) requires communications providers to challenge denials within thirty (30) days. It is suggested, by the way, that the thirty (30) day time limit applies only to a challenge under the Telecommunications Act. It does not operate to otherwise shorten the time frame in which challenges under state or local law can be made. In New Jersey, for example, the forty -five (45) day rule to challenge governmental actions would apply if the challenge was based solely on New Jersey's land use laws. Section 332(c)(7)(B)(i)(lI), however, is important to this topic, both because it relates directly to the siting of towers, and because it is frequently litigated. It precludes local governments from "prohibiting or having the effect of prohibiting the provision of 4 personal wireless services." This situation generally arises where a municipality "zones out" wireless communication facilities by not allowing them as permitted uses in any zone or simply denies applications for building, zoning, or special use permits for such activities. In "the early days ", the prohibition also found life through "moratoria" or "freezes" on the construction of towers. Municipalities simply imposed moratoria and freezes in order to "get a better handle" on the nature of the industry and the activities proposed, and, again, to avoid "the fear of the unknown." Cases involving "freezes" are no longer as frequent, given that municipalities are both more educated and more familiar with this industry and its activities. Thus, litigation surrounding this particular clause of the Telecommunications Act is generally ordinance related, or driven by denials of specific applications. A. Ordinances. As practitioners in the field, we find, far too often, that municipalities simply make no provision for cellular communication towers and associated facilities as either permitted uses, accessory uses, or conditional uses under their zoning ordinances. This is a mistake. Indeed, New Jersey's Supreme Court has encouraged municipalities to adopt ordinances identifying zones and sites for such facilities. Smart SMR v. Fairlawn Bd. of Adjustment, 152 NJ 309, 334 -336 (1998). Even more recently, that Court has suggested that a municipality "defaults" on the issue by failing to so zone, thereby giving the carrier a "leg up" in the application process. New Brunswick Cellular v. South Plainfield Bd. of Adjustment, 160 NJ 1, 15 (1999). It is not overly complicated for a municipality to enact an ordinance regulating cellular communications towers. For example, it does not take much imagination to justify the inclusion of cellular towers as permitted uses in zones typically classified as "industrial." Such zones generally permit utilities, as well as buildings or operations which are already in excess of residential height limitations such as hotels, hospitals and manufacturing plants. Towers may also be appropriate in areas classified as "forest" or agricultural districts, given their general distance from residential neighborhoods, and the consequent avoidance of the NIMBY type objections. Moreover, concerns about the height of a tower are ameliorated when the tower is in a forest surrounded by trees. 5 Likewise, the municipality could, without too much effort or expense, identify areas within its borders where the topography offers higher elevations than in other areas, thereby providing a logical and advantageous location for siting such towers. Areas along State and other major highways also offer an opportunity to encourage cellular towers: the traveling public is not as offended by the aesthetics; there are generally pockets where residential development is either absent or isolated; and, again, there is no significant NIMBY opposition. Moreover, the enactment of such ordinances allows municipalities to regulate the construction of new towers by encouraging co- location. Such co- location is permissible, and can require the telecommunications providers to investigate the possibility of affixing their antennae on existing towers of competitors. Ordinance provisions can, for example, require new towers to accommodate other future users. Such ordinances can also establish priorities for the co- location of antenna on existing structures, such as municipal water towers, electrical towers, and the like. The encouragement of co- location simultaneously discourages the construction of new towers, and public opposition to the installation of mere antennae on existing facilities is generally not as intense as it is to the construction of new towers. A properly enacted ordinance also imposes upon the telecommunications provider the obligation to submit significant amounts of information, which, when properly digested, can also reduce public opposition and the NIMBY fears associated with such applications. A sample ordinance is attached to this outline. While such ordinances may not entirely eliminate the need for use variances if those particular zones do not provide the "gap coverage" needed by the carrier to meet its FCC requirements, they at least suggest to the Courts that the municipality has consciously addressed the issue, and has attempted to regulate the activity as opposed to "prohibiting" the activity. A properly drafted ordinance will also impose greater burdens upon the applicant in terms of proofs necessary to secure a use variance or special use permit for construction of a tower in a location where the use is not permitted under the ordinance. As a consequence, where a land use agency denies the application, it should be in a better position to defend its actions, and secure affirmance of its decision, than if it 6 acted "out of a vacuum." B. Specific Site Applications: The Typical Factual Situation. The following typical facts are generally adduced by the applicant for a cellular communications tower: 1. The applicant provides personal communications services over a network of wireless telecommunications facilities, pursuant to a license from the Federal Communications Commission. 2. PCS technology is a new generation of wireless communication services that uses digital transmission to improve the quality and reliability of the communications. 3. Under FCC regulations, the applicant operates its wireless telephone service for the general public as a common carrier. 4. Portable telephones using PCS digital technology operate by transmitting a very low power radio signal between the telephone and the applicant's antennas mounted on towers, poles, buildings, • or other structures. 5. In order to provide continuous service to a PCS telephone user, there must be a series of overlapping cells in a grid pattern approximating a honeycomb. 6. Without this series of overlapping cells, a PCS telephone users conversation might be interrupted when he or she enters an area that is not within a functioning cell, and the service would not be available, thereby causing the call to abruptly end. 7. The distance from cell site to a PCS telephone needs to be relatively short. 8. The applicant's engineers use complex computer programs to complete a propagation study, which shows where a cell site needs to be located within a cell, based on the boundaries of the cell, topography of the land, and other factors. 9. Once a potential site is identified, the applicant's engineers verify • 7 that the site actually will provide sufficient coverage of the cell by performing a `drive test' with radio equipment. 10. In order to provide PCS telephone service to a portion of the area in which coverage needs to be effectuated to meet FCC licensing requirements, the applicant needs to place an antenna cell site at a particular location. Therefore, this location is identified and becomes the subject of the permit application, special use permit, or use variance. [See Onmipoint Comm. Enterprises v. Charlestown Township, F. Supp. 2000 WL 128703 (E.D. Pa 2000)]. As can be seen from the foregoing, the nature of the application is quite specific, involves technical information, and is always supported by the applicant's experts. A standard permit, or variance application, involves the testimony of numerous witnesses. First, the applicant's site acquisition expert will testify as to the nature of the service that the applicant provides; (s)he will describe the area licensed to this applicant to provide telecommunications services; will testify that a number of sites were investigated, but that this site, because of its location, topography, availability of existing tall structures or surrounding trees, etc., presents the most suitable site for the location of the tower, in order to meet the "grid" requirements and provide the coverage needed to comply with FCC regulations. The applicant's radio frequency engineer will testify that the tower is needed both because of the high usage of cell phones along and around the area of the site upon which the tower is proposed, and because the FCC requires that all "gaps" in this licensed area be "filled in" and serviced. (S)he will explain why other competitors' towers in the area, (assuming they exist and that co- location is a possibility), do not satisfy the applicant's needs, because they are outside its "search ring." (This is the area within which a tower can be situated in order to "fill in the gap" necessary to provide the required coverage.) The radio frequency engineer will also describe other sites that were considered by the applicant, which would have met its needs within the center of the area of the search ring, 8 but which, for various reasons, were not available, thereby leaving the subject site as the "most suitable site" for the activity. Either the radio frequency engineer, or some other witness on behalf of the applicant, will further testify that the tower will not interfere with televisions, radios, household appliances, or with other cell carrier facilities, and generally that the towers are not harmful to residents, but meet the federal and, if applicable, state requirements, for radio frequency transmissions. Applicants will generally produce the testimony of land use planners, who will advance the notion that the use is "inherently beneficial" and/or that it advances the public interest; and that this is a suitable site for the particular use. They will urge that the use will neither negatively impact the zoning plan, nor substantially interfere with the municipality's master plan. This last piece of testimony is particularly easy for the planner where the municipality has failed to provide for telecommunications towers within its master plan and has failed to identify any other sites that would be permitted for the activity. Against this backdrop, it is difficult for neighbors to counter such expert testimony. Neighbors generally care about the aesthetic issues. They fear the unknown of the radio frequency issues, over which local boards have no jurisdiction. They complain about de- valuation of their properties caused by the tower's proposed location, although they generally offer no expert proof in that regard. In short, their testimony is almost always borne of the N MBY mentality. It is suggested that where a municipality has a legitimate belief that the specific site is inappropriate, there are a number of ways to validly reject the application. The first is to have meaningful discussions with the communications provider. They actually prefer municipal cooperation. The sooner the tower is erected, the sooner they recoup their expenses and generate revenues. Given the huge amounts of money involved, delay is an immensely costly proposition. It is incumbent upon the municipality, then, to encourage, and even assist, the communications provider in finding more suitable locations that would also meet its "search ring" requirements. Where municipal cooperation is unavailable, the governmental entity reviewing the application can, and should, still familiarize itself with other preferable sites in the 9 municipality that would appear to be legitimate candidates. The identification of such sites, and the direct questioning of the applicant as to why those sites are unavailable, is often helpful. There is a strong likelihood that the applicant will not have identified those sites as potential candidates, and therefore will not have undertaken a "propagation study" to determine whether it can meet its coverage requirements using that location. In one recent New Jersey case, for example, the applicant sought to construct a tower for Bell Atlantic Nynex in a P -1, or public purpose zone, which permits public or institutional uses such as hospital, recreational facilities or educational facilities, but not commercial or industrial uses. The applicant's witnesses testified that they had investigated 27 sites, none of which were either available or suitable to this proposed use. The Court, in what can only be characterized as an extraordinarily negative reaction to the application, wrote: "Although [the applicant] did testify to the unavailability or unsuitability of 27 sites he had investigated, it did not demonstrate that there might not be other sites - - available and suitable - - which could meet its need and be less intrusive in the neighborhood in which it would be located." New York SMSA v. Bd. of Adjustment of Bernards Twp., 324 NJ Super 149, 156 (App. Div. 1999). The Bernards case is also a good example of how a governmental entity can oppose the application. There, the Board of Adjustment itself presented the testimony of a planning expert, "who said that the major negative factor arguing against the variance was the location of the proposed tower close to the two densely populated resident developments. He said that because of the height of the tower and the impossibility of effective screening through natural vegetation, regardless of the distance, [the tower] will have an impact in terms of daily comings and goings to that neighborhood in terms of view and a change of character of their neighborhood." Id. at 157. In upholding the Board's denial of the variance request, the Court justified that denial and said: "First, the parcel was not zoned to permit commercial uses Second, the topography precludes effective screening and makes unavoidable the negative effect of the unsightly tower on the residences both east and west of the site. Third, the master plan's designation of the site for future 10 residential use....is inconsistent with construction of the tower And finally, while the applicant referred to 27 other sites it had examined, it did not claim or demonstrate that there was no other suitable or adequate site that could meet its needs. Its reference to 27 sites which were explored does not negate the possible existence of others that might have served better and been less intrusive but which were not discussed." Id. at 160 -161. The Court's approach to the testimony regarding the 27 other sites is tantamount to requiring the applicant to "prove a negative ". Under the Court's analysis, a telecommunications applicant would be required to identify every parcel and tax lot in the municipality within its "search ring ", perform a propagation study as to each, and then, based upon those studies, define which sites are suitable for the transmission of the frequencies. The applicant would then have to negotiate with various owners whose property qualifies and hope that someone would be interested in allowing the tower to be constructed on their site. Such a process is unnecessarily unwieldy, overly burdensome, and too time consuming. If it wishes to fight the application, local government should also consider the employment of a real estate expert who can, by way of expert testimony, show the likely negative impact of the cell tower upon residential real estate values in the neighborhood. Such concerns are legitimate in the context of evaluating the suitability of the site for the particular activity. Notwithstanding the foregoing, it is strongly suggested that cooperation between the telecommunications carrier and the municipality can result in a "win -win" situation for all. Yogi Bera recently said "There's no stopping the future." It is equally true that there's "no stopping the cell towers." It is therefore appropriate for local government to recognize the needs of this important industry, and attempt to create a means by which a peaceful co- existence can develop. Indeed, the New Jersey Supreme Court recently had the following comments regarding the need for governmental entities and the telecommunications industry to find a common ground: "The development of a wireless system that does not adversely affect surrounding property calls for cooperation between carriers 11 and land use regulators. We anticipate that carriers will continue to seek sites for telecommunications facilities. Across the country, antennas will continue to grow to accommodate an increasing number of subscribers. [The Court cites to one estimate of an increase of 30,000 new subscribers per day]. At the beginning of the 20th century, telephone and telegraph carriers dotted the landscape with poles to support the wires that were essential for telecommunications. As the century comes to an end, society is making the transition from wired to wireless communications. Eventually, towers and monopoles, like the telephone poles of the past, may become an accepted part of the scene. At some time, moreover, Congress or the State Legislature may declare that local land use agencies have no role in deciding the location of wireless telecommunications facilities. For the present, we believe it is more consistent with the existing federal and state statutes to recognize a harmonious role for local land use agencies in the location of those facilities. That recognition should permit telecommunications carriers to erect needed telecommunications facilities on suitable sites." Smart SMR v. Fairlawn Bd. of Adjustment, 152 NJ at 335 -336 (1998). It is our function as local government attorneys to recognize these realities, and to guide our clients in effectuating a compromise that balances legitimate public planning concerns with the needs of an industry that each of us becomes more dependent upon each day. 12 § 130 -60.1. Telecommunications towers and antennas. [Added 6 -21 -1999 by Ord. No. 1999-11] A. Subject to the conditions set forth in this section, and to plan approval, new telecommunications towers and antennas shall be permitted as conditional uses in all nonresidential zoning districts within the Township of Lumberton and upon the proposed new Municipal Complex located on Municipal Drive. Telecommunications towers and antennas shall not be permitted in the RA Rural Agricultural District; RAJSTDR Sending Area District; RA/R -1 TDR Receiving Area District; RA/R -2 TDR Receiving Area District; RA/R3 TDR Receiving Area District; RA/R4 TDR Receiving Area District; RA/R5 TDR Receiving Area District; RA/ST TDR Transition Area District; R - 1.0 Residential Low - Density District; R - 2.0 Residential Medium - Density District, with the exception of Block 19, Lot 2.01, upon which said use shall be permitted as a conditional use; R -6 Residential Townhouse District; R -75 Residential District; and H/A Historic /Architectural Area District. [Amended 11 -15 -1999 by Ord. No. 1999-21] B. Preexisting towers and antennas. Wireless telecommunications towers that existed on the date of the adoption of this section (nonconforming wireless telecommunications towers) are subject to the following provisions: (1) Nonconforming wireless telecommunications towers may continue in use for the purpose now used, but may not be expanded without complying with this section. (2) Nonconforming wireless telecommunications towers which are partially damaged or destroyed due to any reason or cause may be repaired and restored to their former use, location and physical dimensions subject to obtaining a building permit therefor, but without otherwise complying with this section. However, should the destruction or damage be determined by the Lumberton Land Use Board to be of such an extent that it is beyond the scope and intent of the "partial destruction" clause ofN.J.S.A. 40:55D -68, then repair or restoration will require compliance with this section. (3) The owner of any nonconforming wireless telecommunications tower may repair, rebuild and/or upgrade (but not expand such telecommunications tower or increase its height or reduce the setbacks) in order to improve the structural integrity of the facility, to allow the facility to accommodate collocated antennas or facilities or to upgrade the facilities to current engineering, technological or communications standards, without having to conform to the provisions of this section. C. General requirements for towers and antennas. (1) Locational priority. If needed in accordance with an overall comprehensive plan for the provision of full wireless telecommunications services within the Lumberton Township area, wireless telecommunications towers, where permitted as a conditional use, shall be located in accordance with the following prioritized locations: (a) Existing towers. The first priority location shall be collocation on existing telecommunications towers used for transmitting or receiving analog, digital, microwave, cellular, telephone, personal wireless service or similar forms of an electronic communication, provided, however, that locations which meet this criteria shall be subject to the design and siting components of this Ordinance, and collocation sites shall not become "antenna farms" or otherwise be deemed by the land use board to be visually obtrusive; (b) Publicly used structures. The second priority location shall be on land or structures owned, in order of specific preference: (1) the Township of Lumberton; (2) the Board of Education of the Township of Lumberton; (3) the County of Burlington; (4) the State of New Jersey; (5) any other state, county or local governmental agencies or bodies. These publicly used structures are preferred not used in direct support of a telecommunications facility shall not be stored or parked on the site of the telecommunications facility. (b) Telecommunications towers may be located on sites containing another principal use in the same billable area. (9) Monopole construction. Monopole tower construction shall be utilized in all cases except where it can be conclusively demonstrated that a monopole construction is not suitable for a specific location or application or that a different type pole is necessary for the collocation of additional antennas on the tower. D. Additional submission requirements. (1) A report from a qualified expert containing the following: (a) A description of the tower and the technical and other reasons for the tower design and height, including cross sections and elevations. (b) Documentation to establish that the tower has sufficient structural integrity for the proposed use at the proposed location and meets the minimum safety requirements and margins according to FCC requirements in their current adopted standards and revisions. (c) Indicates the height above grade for all potential mounting positions for collocated antennas and the minimum separation distance between antennas. (d) Description of the tower's capacity, including the number and type of antennas that it can accommodate. (e) Statement detailing current FCC information concerning wireless telecommunications towers and radio frequency admission standards as well as information concerning the projected power density of the proposed facility and how it meets the FCC standards. (2) A letter of commitment by the applicant to lease excess space on the tower to other potential users at prevailing rates and standard terms. The letter of commitment shall be recorded prior to the issuance of any building permits. The letter shall commit the tower owner and his successors in interest to this obligation. (3) Cessation of use. A copy of the relevant portions of a signed lease which requires the applicant to remove the tower and associated facilities upon cessation of operations of the site shall be submitted at the time of the application. (4) Visual impact study. A visual impact study, graphically stimulating through models, computer enhanced graphics or similar techniques, the appearance of any proposed tower and indicating its view from at least five locations around and within one mile of the proposed wireless telecommunications tower where the wireless telecommunications tower will be most visible. Aerial photographs of the impact area shall also be submitted. E. Design requirements. Telecommunications towers shall be of a monopole design unless the Board determines that an alternative design would better blend into the surrounding environment. (1) Aesthetics. At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening and landscaping that will blend the tower and related facilities to the natural setting and built environment. The towers themselves shall be of a color appropriate to the tower's locational context so as to make it as unobtrusive as possible, unless otherwise required by the FAA. (2) Accessory utility buildings. All utility buildings and structures accessory to a tower shall be architecturally designed to blend in with the surrounding environment and shall meet the minimum setback requirements ofthe underlying zoning district. Ground- mounted equipment shall be screened from view by suitable vegetation, except where a design of nonvegetative screening buffer reflects and complements the architectural character of the surrounding neighborhood. A landscape plan shall be submitted for review of proposed screening. (a) Landscaping shall be provided along the perimeter of a security fence to provide a visual screen or buffer for adjoining private properties and the public right -of -way. Required front yard setbacks shall be landscaped. Existing on -site vegetation shall be preserved or improved, and disturbance of existing topography shall be minimized, unless such disturbance would result in less visual impact of the site to the surrounding area. (3) Lighting. No lighting is permitted except as follows: (a) Equipment buildings and compounds may have security and safety lighting at the entrance, provided that the light is attached to the facility, is focused downward and is on timing devices and/or sensors so that the light is turned off when not needed for safety or security purposes; and (b) No lighting is permitted on a wireless telecommunications tower except lighting that specifically is required by the FAA, and any such required lighting shall be focused and shielded to the greatest extent possible so as not to project towards adjacent and nearby properties. (4) Height. The antenna and any supporting structure shall not exceed 200 feet in height but, if a lesser height, shall be designed so that its height can be increased to 200 feet if necessary to accommodate other local communications facilities in the future. (5) Signs and advertising. No advertising is permitted on a telecommunications tower or accompanying facilities. Only signs for warning or equipment information shall be permitted on any portion of a tower or equipment building. (6) Fencing and other security devices. Telecommunications towers and equipment buildings in compounds shall be surrounded by a security feature, including an appropriate anti - climbing device or other similar protective device to prevent unauthorized access to the telecommunications facilities, and shall be further surrounded with a security fence. Additional safety devices shall be permitted or required as needed, and as approved, by the Board as may be necessary. (7) Noise. No equipment shall be operated so as to produce noise in excess of limits set by the township's noise ordinance,EN except in emergency situations requiring the use of a backup generator. (8) Radio frequency emissions. The FTA gives the FCC sole jurisdiction over the field of regulation of radio frequency (RF) emission and telecommunications towers which meet the FCC standards shall not be conditioned or denied on the basis of RF impacts. Applicants shall provide current FCC information concerning wireless telecommunications towers and radio frequency emissions standards. Applicants for telecommunications towers shall be required to provide information on the projected power density of the proposed facility and how this meets the FCC standards. F. Violations and penalties. (1) Any person who attempts to erect or erects a telecommunications tower or antennas covered by this section without having first obtained the necessary approvals, variances or building permits, in the manner provided in this section, shall be deemed in violation of this section. Any responsible party or other persons convicted by a court of competent jurisdiction or violating any provision of this section shall be punished by a fine not to exceed $1,000 or by imprisonment not to exceed 90 days or by a sentence of community service not to exceed 90 days. (2) If any structure is erected, constructed, reconstructed, altered, repaired, converted or maintained in violation of this section, or without obtaining the required approvals or permits, or if any building, structure or land is used in violation of this section, the Township Solicitor, in addition to any other remedies, may institute proceedings to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance or use or to correct or abate such violations. Each and every day that such unlawful erection, construction, reconstruction, alteration, conversion, maintenance or use continues shall be deemed a separate offense. In the event that the Township is successful in securing the judicial relief requested, then the owner and operator of the telecommunications tower shall be jointly and severally liable for the reasonable costs and attorneys fees incurred by the township in the course of said action.