[Adopted 12-13-2016 by Ord. No. 2016-7]
As used in this article, the following terms shall have the
meanings indicated:
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
Telecommunications equipment that transmits and receives
electromagnetic radio signals used in the provision of all types of
wireless communications services. An antenna shall not include private
residence-mounted satellite dishes or television antennas or amateur
radio equipment including, without limitation, ham or citizen band
radio antennas.
Facilities consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide service which includes video programming
and which is provided to multiple subscribers within the Township;
but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of Title II of the Communications Act of
1934, as amended, except that such facility shall be considered a
cable system [other than § 541(c)[1]] to the extent such facility is used in the transmission
of video programming directly to subscribers, unless the extent of
such use is solely to provide interactive on-demand services;
An open video system that complies with 47 U.S.C. § 573;
or
Any facilities of any electric utility used solely for operating
its electric utility system.
The antenna, nodes, control boxes, towers, poles, conduits,
ducts, pedestals, electronics and other equipment used for the purpose
of transmitting, receiving, distributing, providing, or accommodating
wireless communications services.
The Communications Act of 1934, as amended as of the time
of enactment of this article.
Any tangible asset used to install, repair, or maintain a
facility in the right-of-way.
Conduit, pipes, cables, wires, lines, towers, optic fiber,
poles, associated equipment and appurtenances, and any other facilities
located in the right-of-way and designed, constructed, and/or used,
by telecommunications providers, public utilities, or other persons
for transmitting, transporting, or distributing communications, telecommunications,
electricity, natural gas or manufactured gas, oil, gasoline, steam,
or any other form of energy, signal or substance. The term "facility"
or "facilities" includes a commercial communications facility, a non-tower
commercial facility (non-tower CCF) and wireless communication facilities.
A person who enjoys an exclusive privilege to occupy or use
a public right-of-way to provide nonexempt service under this article
and who is in continuous compliance with this article.
All gross revenue of grantee or any affiliate of grantee derived
from the use or occupancy of right-of-way for the provision of nonexempt
services to persons having a residence or place of business in the
Township. Gross revenue shall include amounts earned, regardless of:
Whether the amounts are paid in cash, in trade, or by means
of some other benefit to grantee or its affiliates;
Whether the services with which the revenue is associated are
provided at cost or the revenue amount can be matched against an equivalent
expenditure; and/or
How the amounts are initially recorded by grantee or its affiliates.
Gross revenue shall not be a net of:
Expense, including but not limited to any operating expense;
capital expense; sales expense; or commission;
Any accrual, including, without limitation, any accrual for
commissions; or
Any other expenditure, regardless of whether such expense, deduction,
accrual, or expenditure reflects a cash payment.
Gross revenue shall not be double counted, viz., "gross revenue"
which has been included as gross revenue of both grantee and an affiliate
but which sum is included in gross revenue due solely to a transfer
of funds between grantee and the affiliate shall not be counted for
purposes of determining gross revenue.
All non-tower wireless communications facilities, including,
but not limited to, antennas and related equipment. Non-tower CCF
shall not include support structures for antennas and related equipment.
Corporations, companies, associations, joint stock companies,
firms, partnerships, limited liability companies, and other entities;
municipal, industrial development, housing, redevelopment, and other
authorities and corporations established pursuant to statutes of the
Commonwealth of Pennsylvania; and individuals provided that person
does not include or apply to the Township or to any department or
agency of the Township.
The surface of and space above and below any real property
in the Township in which the Township has a regulatory interest, or
interest as a trustee for the public, as such interests now or hereafter
exist, including, but not limited to, all streets, highways, avenues,
roads, alleys, sidewalks, tunnels, viaducts, bridges, skyways, or
any other public place, area or property under the control of the
Township, and any unrestricted public or utility easements established,
dedicated, platted, improved or devoted for utility purposes but excluding
lands other than streets that are owned by the Township. The phrase
"in the right(s)-of-way" means "in, on, over, along, above and/or
under the right(s)-of-way."
Any telecommunications service, cable service, video programming
service, information service, utility service (including, but not
limited to, electric, gas, water, or steam service), or other form
of service provided by means of facilities located in the right-of-way.
State-of-the-art design techniques used to blend objects
into the surrounding environment and to minimize the visual impact
as much as possible. These design techniques are applied to wireless
communications towers, antennas and other facilities which blend the
proposed WCF into the existing structure or visual backdrop in such
a manner as to render it less visible to the casual observer. Such
methods include, but are not limited to, architecturally screened
roof-mounted antennas, building-mounted antennas painted to match
the existing structure and facilities constructed to resemble trees,
shrubs, light poles, utility poles or flag poles.
A strip of land or part thereof within the right-of-way,
whether dedicated or not, that is intended or used for vehicular and
pedestrian traffic. The phrase "in the (a) street(s)" means "in, on,
over, along, above and/or under the (a) street(s)."
Any telecommunications system, or integral part thereof.
The transmission, between or among points specified by the
user, of information of the user's choosing, without change in
the form or content of the information as sent and received.
Any structure that is used for the purpose of supporting
one or more antennas, including, but not limited to, self-supporting
lattice towers, guy towers and monopoles, utility poles and light
poles and hub facilities for distributed antenna systems.
The Township of Lehigh, Northampton County, Pennsylvania.
The ordinances of the Township of Lehigh, Northampton County,
Pennsylvania.
The person engaged by the Township to perform engineering
services on behalf of the Township.
All real property now or hereafter owned by the Township
whether in fee ownership or other interest.
All construction work performed by the Township or any of
its departments, either with its own personnel or under contract,
including repair, alteration, replacement, or maintenance of facilities
owned, operated, maintained, or controlled by the Township or for
which the Township is responsible.
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for tower-based facilities.
The antennas, nodes, control boxes, towers, poles, conduits,
ducts, pedestals, electronics and other equipment used for the purpose
of transmitting, receiving, distributing, providing or accommodating
wireless telecommunications services.
A freestanding structure, such as a tower-based CCF or any
other support structure that could support the placement or installation
of a commercial communications facility.
[1]
Editor's Note: See 47 U.S.C. § 541(c).
Each person, other than on a transitory basis, who occupies
or uses or seeks to occupy or use the right-of-way to provide a nonexempt
service to persons, residences or businesses within the Township,
or places any equipment or facility in a right-of-way other than on
a transitory basis, including persons with installation and maintenance
responsibilities by lease, sublease or assignment, must register with
the Township. A completed provider certification form and associated
documents as outlined on the form shall be submitted to and accepted
by the Township.
A.
It shall be unlawful for any person to construct, repair, remove,
relocate or perform any work on or use any facilities or any part
thereof in a right-of-way unless in compliance with these rights-of-way
management provisions. Continuous compliance with these right-of-way
provisions grants to grantee a non-exclusive privilege to construct,
repair, remove, relocate or perform any work on or use any facilities
or any part thereof in the rights-of-way within the Township and to
occupy or use the rights-of-way for the purpose of providing nonexempt
service to persons, residences or businesses within the Township.
B.
Exemptions. These right-of-way management provisions shall not apply
to the occupation or use of the right-of-way to provide:
(1)
The transportation of passengers or property or both as a common
carrier by means of elevated street railway, inclined plan railway,
railroad, street railway or underground street, railway, trackless
trolley, omnibus or by any combination of such means.
(2)
The transportation of artificial or natural gas, electricity, petroleum
or petroleum products or water or any combination of such substances
for the public.
(3)
The production, generation, manufacture, transmission, storage, distribution
or furnishing of natural or artificial gas, electricity, steam, air
conditioning or refrigerating service or any combination thereof to
or for the public.
(4)
The diverting, developing, pumping, impounding, distributing or furnishing
of water from either surface or subsurface sources to or for the public.
(5)
The collection, treatment or disposal of sewage for the public.
(6)
The conveyance or transmission of messages or communications except
as set forth herein, by telephone or telegraph for the public.
(7)
The diverting, pumping or impounding of water for the development
or furnishing of hydroelectric power to or for the public.
(8)
The transportation of oxygen or nitrogen, or both, by pipeline or
conduit for the public.
(10)
Cable service.
C.
Commercial communications facilities not exempt. Wireless telecommunications
facilities proposed within rights-of-way are not exempt and are subject
to the requirements of this article. This article does not exempt
any person or corporation who or which furnishes, installs or maintains
wireless telecommunication facilities, including the installation
of relay stations and facilities, communications facilities, aerials,
antennas and aerial masts which are regulated pursuant to other regulations
or ordinances of the Township, as amended, and as may further be revised
in the future.
D.
This article does not authorize a person to provide cable service.
A person seeking to provide cable service must obtain permission from
the Township under separate legislation of the Township.
E.
This article does not authorize the grantee to attach to any pole
or other structure in the right-of-way, devices for the intentional
transmission or radiation of radio frequency emissions or energy by
any means now known or hereafter developed.
B.
Co-location of facilities. Facilities may be co-located on wireless
support structures and other facilities, including poles that exist
on or before the enactment date of this article, including aboveground
facilities.
D.
The authorization of the installation of facilities hereunder shall
not exempt an applicant from compliance with the requirements of any
other ordinance of the Township.
A.
All facilities and equipment installed or erected by the grantee
pursuant to the terms hereof shall be located so as to cause a minimum
of interference with the proper use of rights-of-way and with the
rights and reasonable convenience of property owners who own property
that adjoins any said rights-of-way.
B.
If during the course of the grantee's construction, operation,
and/or maintenance of its facilities and equipment there occurs a
disturbance of any right-of-way by the grantee, the grantee shall,
at its expense, replace and restore such right-of-way to a condition
which existed immediately prior to such disturbance. If the grantee
excavates the surface of any right-of-way, the grantee shall be responsible
for restoration of the right-of-way and its surface within the area
affected by the excavation. The Township reserves the right, after
providing notice to the grantee, to remove and/or repair any work
done by the grantee which is inadequate. The reasonable cost thereof,
including the cost of inspection and supervision, shall be paid by
the grantee. All excavations made by the grantee in the right-of-way
shall be properly safeguarded for the prevention of accidents.
C.
The grantee shall notify Township and all affected property owners
regarding the grantee's need to trim trees or other natural growth
upon and overhanging rights-of-way so as to prevent the branches of
such trees from coming in contact with its facilities or equipment.
Trimming shall be limited to the area required to clear its facilities
or equipment. The Township shall be notified, in writing, 48 hours
in advance of any tree or shrub trimming or clearing, and at the discretion
of the Township, appoint a designee to inspect and monitor trimming
and clearing operations.
D.
All such work in the rights-of-way shall be performed in accordance
with applicable safety codes and technical requirements.
E.
Prior to beginning any construction of facilities, the grantee shall
provide the Township with a written construction schedule for work
in the right-of-way which schedule shall be updated as changed. Upon
completion of initial construction and upon completion of construction
of any modification to its facilities, the grantee shall provide the
Township with a map showing the location of its installed facilities
in the rights-of-way. Such maps shall be provided in both paper forms
as well as in an electronic format for the placement on the Township's
GIS system. Annually thereafter, the grantee shall provide a map to
the Township showing the location of the grantee's facilities
in the rights-of-way on a scale of 150 feet per inch or whatever standard
scale the Township adopts for general use.
F.
The grantee may make excavations in rights-of-way for any facility
subject to obtaining any applicable excavation permits from the Township.
Prior to doing such work, grantee must apply for, and obtain, appropriate
permits from the Township, and give appropriate notices to any other
licensees and/or permittees of the Township, and/or other units of
government owing or maintaining facilities which may be affected by
the proposed excavation.
G.
Nothing in the article shall be construed to prevent the Township
or other agency of government or municipal authority from constructing
sewers, grading, paving, repairing and/or altering any street and/or
laying down, repairing and/or removing water mains and/or constructing
and/or establishing any other public work or improvement. If any of
the grantee's facilities or equipment interferes with the construction
or repair of any street or public improvement, including construction,
repair or removal of a sewer or water main, the grantee's facilities
or equipment shall be removed or replaced in the manner the respective
Township or other agency of government or municipal authority shall
direct. Any and all such removal or replacement shall be at the expense
of the grantee. Should the grantee fail to remove, adjust or relocate
its facilities by the date established by the Township or other agency
of government or municipal authority, the Township or other agency
of government or municipal authority may cause and/or effect such
removal, adjustment or relocation, and the expense thereof shall be
paid by the grantee, including all reasonable costs and expenses incurred
by the Township or other agency of government or municipal authority
due to the grantee's delay.
A.
Compensation for right-of-way use. Every grantee registered with
the Township is subject to the Township's right to fix annually
a fair and reasonable compensation to be paid for use and occupancy
of the right-of-way. Such compensation for right-of-way use shall
be directly related to the Township's actual right-of-way management
costs including, but not limited to, the costs of issuing the permit
and the administration and performance of all reviewing, inspecting,
permitting, supervising and other right-of-way management activities
by the Township; and
B.
Annual right-of-way management fee. Each grantee that is not exempt
shall pay an annual fee to the Township to compensate the Township
for its costs incurred in connection with reviewing, permitting, inspecting
and supervising the ongoing use and occupancy of the right-of-way.
The annual right-of-way management fee shall be determined by the
Township and authorized by resolution of Township Board of Supervisors
and shall be based on the Township's actual right-of-way management
costs as applied to such grantee. This annual right-of-way management
fee shall not be adjusted for at least two years from the effective
date of this article, except for purposes of inflation as determined
by the National Consumer Price Index published by the United States
Department of Labor. Any adjustments to the fee subsequent to two
years from the effective date shall be authorized by resolution of
Township Board of Supervisors, shall be based on the Township's
actual right-of-way management costs as applied to such grantee and
shall be implemented only after providing at least 30 days' prior
written notice to all then-current grantees. The costs recovered under
this subsection shall not include costs recovered by any other fee
provided in this article or in related ordinances.
A.
Determination and posting of security.
(1)
At the time of application for special exception or conditional use
hearing, the applicant shall provide a copy of a certified estimated
cost for removal of all tower(s), equipment shelter(s), fence(s) and
any and all other improvements and complete restoration of the site
to its preconstruction condition. During the consideration of the
special exception use, the applicant shall provide, from an expert
in the area of construction costs, testimony concerning the reasonableness
and accuracy of the certified estimate.
(2)
Prior to the issuance of a building permit, the applicant shall provide,
in a form acceptable to the Township Solicitor, financial security
in an amount of 110% of the cost established during testimony, inflated
to the estimated cost in the final year of the initial term of the
proposed lease or license. The minimum term for such security shall
be 18 months longer than the term of the initial lease or license.
(3)
Not fewer than 90 days prior to the expiration of each term of the
proposed lease or license, the applicant shall submit an updated certified
estimate of the cost of removal as stated above. This estimate shall
be reviewed, and revised as necessary, by the municipality. Not fewer
than 30 days prior to the expiration of the proposed lease or license,
the applicant shall provide, in a form acceptable to the Township
Solicitor, financial security in an amount of 110% of the cost of
such accepted estimate, inflated to the estimated cost in the final
year of the proposed new term of the lease term or license. The minimum
term for such security shall be 18 months longer than the new term
of the lease or license.
(4)
In those cases where there is fee ownership of the premises by the
owner of the proposed facility, security, estimated and secured as
indicated above, shall be provided to the municipality prior to the
issuance of a building permit. The minimum term for such security
shall be 42 months. Costs shall be reestimated by the owner, reviewed
and approved by the municipality, and security shall be posted biannually
beginning on the second anniversary of the establishment of the initial
instrument of financial security. The term of each subsequent instrument
of financial security shall be not fewer than 42 months. In each case,
the form of financial security shall be reviewed and approved by the
Township Solicitor.
Alternative tower structures shall be implemented when possible.
"Alternative tower structures" shall mean man-made trees, clock towers,
tall steeples, light poles, and similar alternative design mounting
structures that camouflage or conceal the presence of antennas or
towers. Further, antenna support structures shall be painted in a
color that best allows them to blend into the surroundings unless
otherwise required by the Federal Aviation Administration (FAA) regulations.
The use of grays, blues and greens may be appropriate; however, each
case should be evaluated individually. No antenna support structure
may be artificially lighted except when required by the FAA.
A.
The grantee shall save the Township, its agents, employees and elected
and appointed officials, harmless from and against all claims, damages,
losses and expenses, including reasonable attorney's fees, sustained
on account of any suit, judgment, execution, claim or demand whatsoever
arising out of the construction, leasing, operation or maintenance
of the grantee's equipment, facilities, and services specified
by this article, whether or not any act or omission complained of
is authorized, allowed and/or prohibited by this article and the rights
granted thereunder.
B.
Insurance.
(1)
The grantee shall obtain and maintain in full force and effect throughout
the term of this article insurance with an insurance company licensed
to do business and doing business in the Commonwealth of Pennsylvania
and acceptable to the Township. All companies will be required to
be rated A-VII or better by A.M. Best or A better by Standard &
Poor's. Grantee shall provide Township with proof of such insurance
so required.
(2)
The grantee shall obtain and maintain in full force and effect, at
the grantee's sole expense, insurance coverage in the following
types and minimum amounts:
|
Type
|
Amount
| ||
|---|---|---|---|
|
a.
|
Worker's compensation and statutory employer's liability
|
$100,000/$500,000/$100,000
| |
|
b.
|
Commercial general (public) liability to include coverage for
the following where the exposure exists:
| ||
|
Premises operations
|
Combined single limit for bodily injury and property damage:
$2,000,000 per occurrence or its equivalent
| ||
|
Independent contractors
| |||
|
Products/completed operations
| |||
|
Contractual liability
| |||
|
Explosion, collapse and underground property damage
| |||
|
c.
|
Comprehensive vehicle insurance coverage for loading and unloading
hazards for:
| ||
|
Owned/leased vehicles
|
Combined single limit of bodily injury and property damage:
$1,000,000 per occurrence or its equivalent
| ||
|
Non-owned vehicles
| |||
|
Hired vehicles
| |||
(3)
The Township shall receive without expense copies of certificates
of insurance evidencing coverage stated above.
(4)
Grantee agrees that with respect to the above-required insurance,
all insurance certificates will contain the following required provisions:
(a)
Name the Township and its officers, employees, board members
and elected and appointed officials as additional insured parties
(as the interests of each insured may appear) as to all applicable
coverage (except worker's compensation);
(b)
Provide 60 days' written notice to the Township for cancellation,
nonrenewal, or material change;
(c)
Provide that all provisions of this article concerning liability,
duty, and standard of care, including the indemnity provisions, shall
be underwritten by contractual coverage sufficient to include such
obligations within applicable policies, subject to policy terms and
conditions.
(5)
Companies issuing the insurance policies shall have no recourse against
the Township for payment of any premiums or assessments which all
are set at the sole risk of the grantee. Insurance policies obtained
by the grantee shall provide that the issuing company waives all right
of recovery by way of subrogation against the Township in connection
with any damage covered by these policies.
A.
General. In addition to all other rights, remedies and powers reserved
and/or retained by the Township under this cell tower and rights-of-way
ordinance or otherwise, the Township reserves the right to bring a
civil action to collect any sums due to the Township by the grantee
and/or forfeit or revoke all privileges of the grantee under this
article in the event of willful or repeated violation of this article.
B.
Penalties. Any person which commits or suffers the violation of this
article, shall, upon being found liable in a civil enforcement proceeding
commenced by the Township, pay a fine of $600 plus all court costs,
including reasonable attorneys' fees incurred by the Township.
A separate offense shall arise for each day or portion thereof in
which a violation is found to exist or for each section of this article
which is found to have been violated. In addition, the Township also
may enforce this article by an action brought in equity.
The grantee shall at all times be subject to the exercise of
the police power of the Township. The grantee shall comply with all
lawful ordinances, codes, laws, rules and regulations of the Township,
County of Northampton, Commonwealth of Pennsylvania, and the United
States of America which are now in effect or hereafter enacted.
Whenever the requirements of this article are in conflict with
other requirements of the ordinances of Lehigh Township, the most
restrictive, or those imposing the highest standards shall govern.
Privileges granted by this article do not constitute a waiver or impairment
of the rights of the Township at law or equity now or henceforth existing
to proceed versus the grantee for enforcement of this article or violation
of this article or ordinances of the Township.
