[HISTORY: Adopted by the Mayor and Council of the Borough
of Sea Bright 7-18-2023 by Ord. No. 07-2023.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. 175,
Small Wireless Facilities, adopted 11-14-2022 by Ord. No. 12-2022.
A.
All definitions of words, terms and phrases that are set forth in
the Communications Act of 1934, P.L. 73-416, as amended by various
statutory enactments, including, but not limited to, the Telecommunications
Act of 1996 P.L. 104-104, are incorporated herein and are made apart
hereof.
B.
All definitions of the words, terms and phrases that are set forth
in the portion of the Middle-Class Tax Relief and Job Creation Act
of 2012, P.L. 112-96, as codified in 47 U.S.C. § 455, are
incorporated herein and are made a part hereof.
C.
All definitions of words, terms and phrases that are set forth in
the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq.,
are incorporated herein and are made apart hereof.
D.
All of the definitions of words, terms and phrases that are set forth
in the Code of Federal Regulations at 47 C.F.R. § 1.6002,
as amended, are incorporated herein and are made a part hereof.
E.
CONCEALMENT POLE
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
REPLACEMENT POLE
SMALL WIRELESS FACILITY
In addition to the foregoing, the following words, terms and phrases
shall have the meanings indicated unless an alternate meaning clearly
is discernable from the context in which the word, term or phrase
is used:
A decorative concealment pole that conceals, three small
wireless facility installation(s) and may include other features such
as street lighting, 911 call service access, public access Wi-Fi and
surveillance cameras. The pole should be of an inherently rust-resistant
material (i.e., aluminum alloys or stainless steel). A concealment
pole must allow for multiple occupants and allow space for municipal
use for other services and/or equipment. Concealment poles shall be
built with the capability to house three carriers within the base
of the pole. Concealment poles should be a maximum of 55 feet. Concealment
poles shall neither have external latches, external hinges, external
cabling, nor external antennas. All 5G equipment shall be housed internally
within the pole. Use of wooden poles is not permitted.
As defined in 47 U.S.C. § 332(c)(7)(C), as supplemented
and/or as amended to mean commercial mobile services, unlicensed wireless
services, and common carrier wireless exchange access services.
The surface, the airspace above the surface and the area
below the surface of any street, road, highway, lane, alley, boulevard
or drive, including the sidewalk, shoulder and area for utilities
owned by the Borough of Sea Bright within an easement to the public
or other easement owned by the Borough of Sea Bright.
A pole which replaces an existing pole shall be considered
a new pole. A new pole shall be a concealment pole.
As defined in the Code of Federal Regulations at 47 C.F.R.
§ 1.6002(1), as supplemented and/or as amended.
F.
In the event that a term, word or phrase is not defined in any of
the aforementioned statutes and is not otherwise defined herein then
that term, word or phrase shall have its common, ordinary meaning.
A.
No person shall place a small wireless facility in any right-of-way
without first filing a small wireless facility siting permit application,
in the form specified herein and in accordance with the procedures
specified herein, with the Borough Clerk and obtaining a siting permit
therefore, except as otherwise may be provided in this chapter. Upon
approval of a siting permit application, the siting permit authorizing
placement of a small wireless facility in a public right-of-way shall
not be issued by the Borough Clerk to any applicant unless:
(1)
All siting permit application fees and escrow fees, as established
herein, have been paid; and
(2)
All other governmental permits or other governmental approvals that are required for the deployment(s) proposed by the applicant's siting permit application under Chapter 182, Streets and Sidewalks, of the Code of the Borough of Sea Bright, and by any other applicable federal, state or municipal law have been issued by the appropriate issuing authority therefore to the applicant and the applicant has supplied copies of such other permits or approvals to the Borough Clerk for inclusion with the applicant's application documents; and
(3)
The applicant has entered into a "Right-of-Way Use Agreement," the
approved form of which is set forth in Appendix A to this chapter,
with the Borough.[1] The approved form of "Right-of-Way Use Agreement" may
from time to time be revised, supplemented or otherwise amended or
replaced. All such revisions, supplements, amendments or replacements
shall be approved by resolution of the Borough Council. The Borough
Clerk shall maintain on file the currently approved Right-of-Way Use
Agreement version and shall provide a copy to all siting permit applicants.
Minor deviations to the terms and conditions that are set forth in
the approved form of Right-of-Way Use Agreement may be approved by
Borough Council at the time that it grants consent to use a right-of-way
to a siting permit applicant.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
B.
No siting permit authorizing placement of a small wireless facility
in a public right-of-way shall be issued to any applicant unless Borough
Council, in the manner prescribed by applicable laws of the State
of New Jersey, has granted to the siting permit applicant its consent
to use public rights-of-way within the Borough. No siting of a small
wireless facility shall be permitted within 500 feet of another small
wireless facility unless it can be established by clear and convincing
evidence that co-location on an existing or previously approved small
wireless facility is not feasible. Any claims of carriers of technical
incompatibility or inability to co-locate need to be proven by the
carrier, not disproven by the municipality. Responsibility for judging
proof of said claims lies solely with the municipality and/or or its
chosen representative(s).
A.
No application for a small wireless facility siting permit shall be approved if the application proposes the deployment of a small wireless facility upon an existing structure in a right-of-way unless the structure is one of the types of concealment poles that are set forth in § 175-1, Definitions, to this chapter and such concealment pole specifically is designed to accommodate the reasonable and customary equipment necessary for a small wireless facility installation which will accommodate at least three carriers per small wireless facility deployment.
B.
No small wireless facility shall be installed upon any new structure within any right-of-way unless the new structure is one of the pre-approved types of concealment poles that are identified in § 175-1, Definitions, to this chapter. A replacement pole is a new structure and must be a metal concealment pole capable of housing three carriers within the internal housing unit. No application for a small wireless facility siting permit shall be approved if the application proposes the deployment of a small wireless facility in an area other than those specific locations set forth within the Borough's Wireless Siting Plan, which can be found on file with the office of the Borough Clerk. All small wireless facilities must be placed within a 50 feet radius of those specific locations set forth on the Borough's Wireless Siting Plan unless a waiver is granted pursuant to § 175-5G. No more than one concealment pole shall be permitted per intersection or block if the Siting Plan calls for the deployment of a small wireless facility at any location other than an intersection, unless otherwise specified within the Wireless Siting Plan or a waiver is granted pursuant to § 175-5G. No concealment poles shall be located within 500 feet of another unless a waiver is granted pursuant to § 175-5G.
A.
Application filing. An application for a siting permit to place one
or more small wireless facility within a right-of-way shall be made
on forms which shall be available from the Office of the Borough Clerk.
The application, along with the required application fee and the required
escrow fee, shall be filed with the Borough Clerk. Immediately upon
receipt of an application, the Borough Clerk shall provide copies
of the application and all supporting documents that were submitted
by the applicant with the application, to the Borough Engineer, the
Construction Official and the Borough Attorneys.
B.
Application form. The small wireless facility siting permit application
shall be made by a provider of personal wireless services, or its
duly authorized representative as noted in a notarized statement from
the provider of personal wireless services on whose behalf the representative
is acting, and shall contain the following:
(1)
The applicant's name, address, telephone number and email address.
(2)
The names, addresses, telephone numbers, and email addresses of all
consultants, if any, acting on behalf of the applicant with respect
to the filing of the application.
(3)
A description of the proposed small wireless facility, existing structure
and new structure work to be performed. The scope and detail of such
description shall be appropriate to the nature and character of the
work to be performed, with particular emphasis on those matters, including,
but not limited to, subservice utilities likely to be affected or
impacted by the work proposed along with a description of such other
governmental permits or approvals as may be required by applicable
law with respect to the proposed installation(s) and a description
of such other permits or approvals for which the applicant has applied.
(4)
Authorization for any consultant acting on behalf of the applicant
to speak with the Borough, or a designee of the Borough, for the applicant
even if the applicant cannot be available.
(5)
Verification from an appropriate professional that the small wireless
facility shall comply with all applicable federal, state and local
laws, administrative regulations and codes.
(6)
The applicant shall certify that they shall market the availability
of approved facilities to all major wireless carriers in the marketplace.
The applicant shall further certify that they will encourage, manage
and coordinate the location and placement of any interested carrier's
equipment on their structure.
(7)
The applicant shall certify that the poles are built to allow three
carriers to utilize the same pole. The applicant shall certify that
the poles will not be taller than 55 feet. The applicant shall also
verify that the proposed pole being built can accommodate three total
carriers without having to be replaced.
(8)
The applicant shall certify that if the pole location is found to
be in a high traffic and/or sensitive area as determined by the Borough,
the applicant will place a pole in another location.
(9)
The applicant shall certify that it will take down and remove from
any pole or other structure any equipment or wires that are deactivated
and no longer working.
(10)
The applicant shall certify that the location of all poles will
be no closer than 500 feet apart. Should a carrier successfully scientifically
demonstrate that acceptable coverage cannot be achieved with 500 feet
spacing, such carrier may make an application for a waiver.
(11)
The applicant shall certify the location and number of internal
housing units needed for their poles in the Borough of Sea Bright.
All poles shall have the capability to house three carriers within
one pole at the time of installation.
(12)
The applicant shall procure any and all necessary state and/or
local permits required for placement of poles in the Borough of Sea
Bright.
(13)
An applicant seeking to deploy a network of small wireless facilities,
all of which are to be located in rights-of-way, may file a batched
application for up to 25 small wireless facilities and receive a single
siting permit for multiple small wireless facilities.
(14)
A certification that the applicant shall remove the small wireless
facility, including any equipment or wires, when it is no longer in
use.
A.
The Borough shall review the application for a small wireless facility
siting permit in light of its conformity with the provisions of this
chapter, and shall approve a siting permit on nondiscriminatory terms
and conditions subject to the following requirements:
(1)
Within 30 days of receiving an application, the Borough Clerk shall
determine and notify the applicant:
(a)
Whether the application is complete;
(b)
If the application is incomplete, what specific information
is missing; and
(c)
Whether the deployment of the small wireless facilities as proposed
requires the applicant to apply for other permits, such as a street
opening permit or construction permit, for which the applicant has
not yet applied. No small wireless facility siting permit application
shall be deemed complete until the applicant has applied for all other
permits and approvals required by all other laws and regulations that
are applicable to the applicant's proposed small wireless facility
deployment.
B.
The Borough shall make its final decision to approve or deny the
application within the following time frames:
(1)
Sixty days from the submission of a complete application to install
a small wireless facility upon one or more existing structures.
(2)
Ninety days from the submission of a complete application to install
a small wireless facility upon one or more new structures.
(3)
Ninety days from the submission of a complete batched application
to install small wireless facilities upon both existing and new structures.
The time frames described above by which an application shall
be either approved or denied may be extended by mutual consent of
the applicant and Borough. Such consent shall be set forth on a form
for such purposes which shall be available from the Office of the
Borough Clerk. Such consent on behalf of the Borough shall be exercised
by the Mayor in his/her reasonable discretion.
C.
The Borough Clerk shall notify the applicant, in writing, of the
final decision, and if the application is denied it shall specify
the basis for denial; and cite such specific provisions, as to why
the application was denied.
D.
Notwithstanding an initial denial, the applicant may cure any deficiencies
identified by the Borough within 30 days of the denial without paying
an additional application fee, provided the Borough Clerk shall approve
or deny the revised application within 30 days of receipt of the amended
application. Any denial shall be limited to the deficiencies specified
in the original notice of denial.
E.
If the Borough fails to act upon an application within the time frames
prescribed by this section, the applicant may provide written notice
to the Borough that the application review and decision period has
lapsed. Upon receipt of such notice, Borough Council, by resolution
adopted no later than its second regularly scheduled public meeting
next following receipt of the notice, shall either deny the application
or direct that the siting permit shall be approved and issued. Nothing
in this subsection is intended in any way to impact any other right
or remedy that may be available to the applicant under applicable
federal or state law if the Borough fails to act upon an application
within the time frames prescribed by this section.
F.
A siting permit from the Borough authorizes an applicant to undertake
only certain activities in accordance with this chapter. No approval
or consent granted, or siting permit issued, pursuant to this chapter
shall confer any exclusive right, privilege, license or franchise
to occupy or use any public right-of-way within the Borough of Sea
Bright for the delivery of telecommunications services or for any
other purpose.
G.
Waiver. The Borough Engineer may waive any siting standard set forth
in this chapter if the carrier can scientifically demonstrate strict
enforcement will prohibit or have the effect of prohibiting any interstate
or instrastate telecommunications service or personal wireless service.
Claims of technical incompatibility or inability to co-locate need
to be proven by the carrier, not disproven by the Borough. Responsibility
for judging proof of said claims lies solely with the municipality
and/or its chosen representative(s).
No siting permit issued under this chapter shall be valid for
a period longer than 12 months unless construction has actually begun
and continuously and diligently is pursued to completion. Upon written
request from the applicant, the Mayor, upon consultation with the
Construction Official, may extend the siting permit for a period of
up to 12 months so long as construction has begun at the time that
the applicant's request for an extension is made.
A small wireless facility siting permit shall not be required
for:
A.
Routine maintenance of a small wireless facility.
B.
The replacement of a small wireless facility with another small wireless
facility that is substantially similar or smaller in size, weight
and height to the small wireless facility that is being replaced.
C.
Provided, however, that on a location where the Borough and/or another
provider has placed equipment or facilities, any routine maintenance
or replacement that is done shall not occur until written authorization
from the Borough and/or the other provider, as the case may be, to
proceed is provided to the Borough, which authorization to proceed
shall not unreasonably be withheld by the Borough and/or the other
provider.
D.
Provided further that if the replacement of a small wireless facility
with another small wireless facility includes replacement of the structure
to which the small wireless facility is attached then an application
for a siting permit shall be required.
A.
All applications for approval and issuance of a small wireless facility
siting permit pursuant to this chapter shall be accompanied by a fee
as follows:
(1)
For applications that do not include the installation of any new
structures within a right-of-way the application fee shall be $500
for up to five small wireless facilities with an additional $100 for
each small wireless facility beyond five.
(2)
For applications that include the installation of a new structure
within a right-of-way the application fee shall be $1,000 for up to
five small wireless facilities with an additional $100 for each small
wireless facility beyond five.
A.
In addition to the application fee, all applications for approval
and issuance of a small wireless facility siting permit shall be accompanied
by an escrow fee as follows:
B.
The escrow account deposits are required to pay for the costs of
professional services, including engineering, planning, legal and
other third-party professional consulting expenses connected with
the review of submitted materials, including any traffic engineering
review or other special analyses related to the Borough's review
of the materials submitted by the applicant and the preparation of
any reports or any necessary legal agreement regarding rights-of-way
use. An applicant is required to reimburse the Borough for all fees,
costs and expenses of third-party professionals and consultants incurred
and paid by the Borough for the review process of a small wireless
facility siting permit application, such as, but not limited to:
(1)
Professional fees for reviews by third-party professionals or consultants
of applications, plans and accompanying documents;
(2)
Issuance of reports or analyses by third-party professionals or consultants
to the Borough setting forth recommendations resulting from the review
of any documents submitted by the applicant;
(3)
Charges for any telephone conference(s) or meeting(s), including
travel expenses, requested or initiated by the applicant, the applicant's
attorney or any of the applicant's experts or representatives;
(4)
Review of additional documents submitted by the applicant and issuance
of reports or analyses relating thereto;
(5)
Review or preparation of right-of-way use agreements, easements,
deeds, right-of-way municipal consent ordinances or resolutions and
any and all other like or similar documents; and
(6)
Preparation for and attendance at all meetings by third-party professionals
or consultants serving the Borough, such as the Borough Attorney,
Borough Engineer and Borough Planner or other experts as required.
C.
The escrow account deposits shall be placed in a separate account
by the Borough's Chief Financial Officer at the request of the
Borough Clerk and an accounting shall be kept of each applicant's
deposit. Thereafter:
(1)
All third-party professional or consultant fees, costs, expenses
and charges shall be paid from the escrow account and charged to the
applicant;
(2)
Upon either final denial of a small wireless facility siting permit
application or upon issuance of a small wireless facility siting permit,
any moneys not expended for third-party professional or consulting
services shall be returned to the applicant within 90 days upon written
request by the applicant and as authorized by the Borough Council;
(3)
If at any time during the application review process 75% of the money
originally posted shall have been expended, the applicant shall be
required to replenish the escrow deposit to 100% of the amount originally
deposited by the applicant;
(4)
No small wireless facility siting permit application shall be considered
complete until such time as the required escrow fee has been posted
to guarantee payment of third-party professional or consultant fees,
costs, expenses and charges;
(5)
All payments charged to the escrow deposit shall be pursuant to vouchers
from the third-party professionals or consultants stating the hours
spent, the hourly rate and the fees, costs, expenses and charges incurred;
(6)
Third-party professionals and consultants submitting charges pursuant
to this section shall be permitted to charge for such services at
the same rates as they would charge their private clients for like
or similar work provided that:
(a)
Professional fees are billed at rates that do not exceed such
professional fees as are customarily charged by other like professionals
and consultants performing similar work within Monmouth County; and
(b)
Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar
basis with no mark-up being permitted;
(7)
The Borough shall render a written final accounting to the applicant
on the uses to which the escrow deposit was put. The written final
accounting shall include copies of all vouchers that were submitted
by third-party professionals and consultants and paid by the Borough.
An applicant whose siting permit includes the installation of any new concealment pole structure of any of the types that are defined in § 175-1, Definitions, to this chapter shall provide the Borough with access to any of the technological features that are a component the new Smart Pole structure such as, for example, public access Wi-Fi, 911 call service or security cameras, before the applicant offers such access to any other person or entity. Should the Borough decide to utilize any such technological features then the Borough, on an annual basis, shall reimburse the applicant or the subsequent owner of the structure, the costs, on a dollar-for-dollar basis, of providing the Borough with such access. Such costs shall be limited to the costs of providing electricity to the components used by the Borough and the costs of any repairs required to be made to the components used by the Borough, unless the repair costs are necessitated by the acts of the applicant or subsequent owner of the structure, without regard to whether such acts are negligent or intentional.
