[HISTORY: Adopted by the Board of Commissioners of the Township
of Haverford as indicated in article histories.]
[Adopted 10-13-2009 by Ord. No. 2583[1]]
[1]
Editor's Note: This ordinance also repealed former Ch.
167, Telecommunications, adopted 10-12-1999 by Ord. No. 2319.
The intent of this article is to:
A.
Provide clear standards and review requirements addressing the installation
and maintenance of wireless communications facilities in rights-of-way.
B.
Assist the Township in managing and maintaining its rights-of-way
in accordance with applicable law for the long-term benefit of the
public.
C.
Recover the costs of maintaining, managing, and regulating the installation
and maintenance of wireless communications facilities in rights-of-way.
No wireless communications facility shall be installed, constructed, maintained, or operated in any right-of-way except in compliance with this article, and all other applicable provisions of the Township Code, including but not limited to Chapter 157, Streets and Sidewalks, Article III, Excavations, Openings, and Occupancy. The placement of wireless communications facilities in a public ROW shall be governed by this article and shall not be subject to the requirements of Chapter 182, Zoning.
As used in this article, the following words and terms shall
have the following meanings:
One or more dipoles, panels (discs) or other devices used
for the transmission or reception of radio frequency signals, which
may include omnidirectional dipole, directional antenna (panel) and
parabolic antenna disc. The antenna array shall not include the support
structure.
The person applying for a ROW use permit.
The form prescribed by the Township, which the applicant
must complete in order to obtain a ROW use permit under this article.
Wireless communications facilities consisting of an array
that is either no more than four feet in height with an area of not
more than 580 square inches or, if a tubular antenna, no more than
four inches in diameter and no more than six feet in height.
A condition that, in the judgment of the Township Manager,
constitutes an imminent risk to health, welfare, or safety of the
public.
Any structure or enclosure used to contain ancillary equipment
as a component of a wireless communications facility, including a
cabinet, shelter, a buildout of an existing structure or a pedestal.
The recipient of a ROW use permit and its contractors and/or
subcontractors.
Any individual, corporation, partnership, association, governmental
entity or any other legal entity, but not the Township of Haverford.
A public utility corporation certificated by the Pennsylvania
Public Utility Commission and acting within its certificated authority.
The space in, upon, above, along, across, and over the public
streets, roads, lanes, courts, ways, alleys, boulevards, and places,
including all public utility easements and public service easements
that are under the jurisdiction of the Township. The phrase "in the
right(s)-of-way" means "in, on, over, along, above and/or under the
right(s)-of-way."
A written authorization granted by the Township to an applicant
to enter upon and occupy a right-of-way for the purpose of installing,
constructing, maintaining, or operating wireless communications facilities.
A structure designed and constructed to support an antenna
array or base station.
Any unstaffed facility for the transmission and/or reception
of wireless communications services, usually consisting of an antenna
array or base station, connection cables, an equipment facility and
a support structure or attachment structure to achieve the necessary
elevation.
Any personal wireless service as defined by the federal Telecommunications
Act of 1996, which includes FCC-licensed commercial wireless telecommunications
services, including cellular, personal communications services (PCS),
specialized mobile radio (SMR), enhanced specialized mobile radio
(ESMR), paging and similar services that currently exist or that may
in the future be developed.
A.
The Township Manager, or his/her designee, shall be the principal
Township official responsible for the administration and implementation
of this article.
B.
The Township Manager, or his/her designee, shall coordinate the preparation
of all policies and forms as necessary for the implementation of this
article with the approval of the Board of Commissioners.
A.
Except as otherwise provided in this article, no person shall enter
upon or occupy any right-of-way for the purpose of installing, constructing,
maintaining, or operating wireless communications facilities without
first having obtained a ROW use permit for each such facility.
(1)
Nature of grant. A ROW use permit shall not convey title, equitable
or legal, in the right-of-way. A ROW use permit grants a right to
occupy a ROW in the Township.
(2)
Term. ROW use permits shall have a one-year term, automatically renewable,
subject to then current code provisions and the payment of applicable
fees to the Township in accordance with this article.
B.
Every person who desires to construct, install, maintain, or operate
wireless communications facilities in the ROW must enter into a right-of-way
use agreement with the Township as a prerequisite to the issuance
of any ROW use permits. The form and content of the right-of-way use
agreement shall be established by the Board of Commissioners.
C.
Except as otherwise provided herein, any person owning, operating or maintaining any wireless communications facility in any right-of-way as of the effective date of this article shall also obtain a ROW use permit in accordance with § 167-9, Transitional provisions.
D.
Nothing in this article shall be construed as a waiver of any other
ordinances or regulations of the Township or the Township's right
to require permittees to secure and remit payment for any and all
other required permits or authorizations.
A.
Wireless communications facilities allowed in rights-of-way shall
be limited to base stations and any equipment facilities necessary
to the operation of the base stations.
B.
Support structure. The antenna array must be mounted on a monopole
support structure, such as a utility pole, in compliance with construction
standards approved by the Township Engineer. The support structure
must be located in proximity to other similar support structures within
the right-of-way and cannot exceed them in height by more than five
feet.
C.
Equipment facilities must be installed so that the roof or lid is
either below or is flush with local ground-level grade. All such equipment
facilities shall be shown in the application. The Board of Commissioners
may grant a waiver to this requirement, on a case-by-case basis, upon
the applicant's showing of need, provided that the facility does
not constitute an obstruction in the ROW which would endanger public
safety.
A.
An application for a ROW use permit shall be submitted to the Township
Manager on a form, established by the Township, which form may be
revised from time to time.
(1)
The application form shall request information regarding the proposed
or actual physical use and occupation of the right-of-way by the applicant,
including specific information regarding the wireless communications
facilities the applicant proposes to place or currently maintains
in the right-of-way.
(2)
A single application may cover multiple wireless communications facilities.
(3)
Support structure attachment agreement. If the antenna array is to
be erected on a third party's support structure, the consent
of the third party must be attached to the application. If the antenna
array is to be erected on a Township support structure, the application
shall include a request therefor. If granted, the applicant must enter
into a support structure attachment agreement with the Township and
pay an annual fee for the use of the Township's facilities.
(4)
The application must demonstrate that the applicant possesses a license
from the Federal Communications Commission to provide telecommunications
services to the public and is authorized to conduct business in the
Commonwealth of Pennsylvania.
(5)
The Township shall review each application to determine whether such
use would have a detrimental effect on public safety as it relates
to the rights-of-way or would place an undue physical burden on the
rights-of-way.
(6)
All applications shall include a sworn affidavit from a radio frequency
engineer that the placement or occupancy of the wireless communications
facility in the ROW will not interfere with public safety communications
and the usual and customary transmission or reception of radio, television
or other communications services enjoyed by adjacent residential and
nonresidential properties.
B.
In considering an application for the issuance of a ROW use permit, the Township may use such outside experts as it deems necessary to assist in reviewing the application and determining whether the use proposed by the applicant would have a detrimental effect on public safety or place an undue burden on the right-of-way. In the event the Township deems it necessary to employ an outside expert or experts to advise the Township with respect to a particular application, the reasonable costs of such expert(s) ("expert costs") shall be borne by the applicant. Upon completion of its review of the application, the Township shall present a statement of the expert costs to the applicant for payment. No ROW use permit shall be issued until the applicant pays the expert costs. Payment of expert costs is in addition to, and not in lieu of, the payment of the applicable fees set forth in § 167-8 below. Expert costs are nonrefundable in the event the application is denied.
C.
Decisions to grant or deny an application shall be made on a nondiscriminatory
and competitively neutral basis. Upon submission of a fully completed
application to the Township and the accompanying fee, the Township
shall review the application as follows. The Township shall grant
or deny an application within 60 days of its receipt. A decision to
deny an application shall be preliminary and shall become final only
after the applicant has received the preliminary decision and has
been given 10 days to request a hearing before the Township Property
Committee of the Board of Commissioners. If such a hearing is not
requested, the decision shall become final at the end of the ten-day
period. If a hearing is requested, a written record shall be made,
and the Township Property Committee shall render a final, written
decision supported by substantial evidence contained in the written
record within 45 days of the close of the hearing.
A.
The fees and charges prescribed by the Board of Commissioners and which must be paid for installation and maintenance of a wireless communications facility in the Township are set forth in the Fee Schedule contained in Chapter A187, Fees, hereof.
B.
Application fee. The applicant for a right-of-way use permit shall pay the Township an application fee as set forth in the Fee Schedule at Chapter A187. This fee is directly related to the Township's costs in reviewing the application (excluding expert costs). This fee is nonrefundable.
A.
Persons already authorized by the Township to own, construct, operate
or maintain wireless communications facilities in the rights-of-way
who are required to obtain a ROW use permit under this article may
continue to conduct those activities expressly authorized until the
earlier of 1) the expiration of the term of the existing authorization
(but not any renewal or extension thereof), or 2) one year after the
effective date of this article. Notwithstanding the foregoing, such
persons shall apply for a superseding ROW use permit pursuant to this
article within 120 days after the effective date of this article and
shall be subject to this article to the extent permitted by law.
B.
Persons owning or operating any wireless communications facilities
in the rights-of-way, the operation or maintenance of which is not
currently authorized but is required to be authorized by this article,
shall have 120 days from the effective date of this article to file
an application for a ROW use permit. Any person timely filing such
an application shall not be subject to a penalty for failure to have
such a ROW use permit, as long as said application remains pending;
provided, however, that nothing herein shall relieve any person of
any liability for its failure to obtain any permit or other authorization
required under other provisions of this article, or other Township
ordinances or regulations, and nothing herein shall prevent the Township
from requiring removal of any facilities installed in violation of
this article or other Township ordinances or regulations.
A.
Insurance required. A permittee shall, at all times during the life
of a ROW use permit, carry itself and require all of its subcontractors
to carry liability, property damage, workers' compensation, and
vehicle insurance issued to the permittee by an insurance company
licensed to do business in the Commonwealth of Pennsylvania in an
amount and form acceptable to the Township as set forth in the permit.
A permittee and all of its subcontractors shall name the Township
as an additional insured on their liability insurance policies for
whom defense will be provided as to all such coverages. All required
insurance coverage shall provide for 30 days' written notice
to the Township in the event of material alteration or cancellation
of such coverage prior to the effective date of such material alteration
or cancellation. A permittee shall provide appropriate insurance certificates
to the Township within 30 days after the issuance of a permit and
annually thereafter. Any certificate of insurance presented to the
Township shall verify that the permittee and all of its subcontractors
are insured against claims for personal injury, including death, as
well as claims for property damage arising out of the permittee's
use and occupancy of the rights-of-way. The Township may accept a
plan of self-insurance as a substitute for such insurance if the Township
determines that such selfinsurance adequately protects the Township
and the public.
B.
Indemnification required. Each permittee and all of its subcontractors
shall, at their sole cost and expense, indemnify, hold harmless, and
defend the Township, its officials, boards, commissions, commissioners,
agents and employees against any and all claims, suits, causes of
action, proceedings and judgments for damages or equitable relief
arising out of the construction, maintenance, or operation of its
wireless communications facilities in any right-of-way, or in any
way arising out of the permittee's use or occupancy of the rights-of-way,
except that a permittee shall not indemnify, hold harmless and defend
the Township in connection with any negligent or malicious act or
omission attributable to the Township. This provision shall include,
but is not limited to, the Township's reasonable attorneys'
fees, expert fees, court costs, and any other costs incurred in defending
against any such claim, suit or proceeding.
A ROW use permit may be transferred provided that:
A.
The permittee notifies the Township of its intent to transfer the
ROW use permit in writing at least 30 days prior to the transfer;
B.
The permittee is not in violation of any of the conditions of the
ROW use permit or any provisions of this article; and
C.
The transferee accepts the transfer and is a party to a current ROW
use agreement with the Township.
A.
The Township may suspend a ROW use permit in the event any one or
more of the following has occurred:
(1)
The permittee shall have caused damage to Township property or the
right-of-way without the prior consent of the Township (except in
the case of an emergency) and without completing proper restoration;
(2)
The permittee's use or occupation of the right-of-way has had
a detrimental effect on public safety;
(3)
The permittee failed to pay fees and charges required under this
article;
(4)
The permittee and all of its subcontractors failed to indemnify, hold harmless, and insure the Township in accordance with the provisions contained in § 167-10 of this article.
(6)
The permittee provided false, misleading, or intentionally incomplete
information on the ROW use permit application.
B.
If the Township has reason to believe that one or more of the above
events has occurred, it shall notify the permittee in writing via
certified mail. The permittee shall have 30 days to cure the violation,
unless the Township reasonably determines that the event is an emergency,
in which case the Township may impose a shorter time period to cure
the violation.
C.
If the permittee fails to cure the violation within the specified time period, the Township may immediately suspend the right-of-way use permit and provide the permittee with written notice via certified mail of its intent to terminate the permit and stating its reasons. A suspension shall be brought to the attention of the Board of Commissioners at its next meeting, at which time the Board of Commissioners shall be permitted to uphold or withdraw the suspension. The permittee shall be provided an opportunity to be heard at such meeting. In addition, the Township may proceed with any other available remedies as set forth in § 167-18 of this article.
A.
In addition to all other rights and powers reserved by the Township,
the Township reserves the right to terminate a ROW use permit and
all rights and privileges of a permittee for any of the following
reasons:
(1)
A permittee, after 30 days' prior written notice, fails to comply
with any of the material provisions of the ROW use permit or this
article;
(2)
A permittee attempts to or does practice any fraud or deceit in its
conduct or relations with the Township pursuant to the permit; or
(3)
The permittee abandons the wireless communications facility.
B.
No termination shall be effective unless and until the Board of Commissioners
shall have adopted a resolution setting forth the cause and reason
for the termination and the effective date, which resolution shall
not be adopted without 30 days' prior written notice via certified
mail to the permittee and an opportunity for the permittee to be heard
and to present evidence before the Board of Commissioners on the proposed
resolution.
Within 120 days of the expiration or termination of a ROW use
permit, whether by action of the Township or otherwise, the permittee
shall remove the wireless communications facility from the right-of-way
and shall restore the right-of-way to a condition satisfactory to
the Township. If such removal is not completed within six months of
the expiration/termination, the Township may deem any facilities or
other property not removed as abandoned. The Township may remove the
facilities and restore the right-of-way at the sole expense of the
permittee. The permittee's obligation to remove its facilities
and restore the right-of-way shall survive the expiration/termination
of the ROW use permit.
The Township shall require the relocation of a wireless communications
facility at the permittee's expense if necessary to accommodate
the location or relocation of the ROW facilities of the Township or
a public utility or to protect the public safety.
A.
Inspections. The Township may inspect any wireless communications
facilities to determine compliance with the terms of this article
and other applicable laws and regulations. Permittees are required
to cooperate with all such inspections and to provide information
requested by the Township as part of the inspection.
B.
Reporting. The Township may require the submission of reasonable
information by the permittee relating to its use and occupation of
the rights-of-way as part of the application process or otherwise.
All information provided to the Township shall be maintained by the
Township as proprietary and confidential if such information is so
designated in good faith prior to the time it is provided to the Township
by the applicant.
A.
Any person violating the prohibitions in § 167-5A (ROW use permit required) of this article shall, upon summary conviction before any District Justice, pay a fine of no more than $600. A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues.
[Amended 3-12-2012 by Ord. No. 2660]
B.
If the Township determines that a permittee is in violation of this
article or a ROW use permit, the Township shall notify the permittee
of the violation(s) in writing via certified mail and provide the
permittee with 30 days to cure the violation(s), unless the Township
reasonably determines that the event is an emergency, in which case
the Township may impose a shorter time period to cure the violation.
The Township, in its reasonable discretion, may provide a longer period
of time to cure the violation(s) if the nature of the violation(s)
is such that it cannot be fully cured within 30 days. If the permittee
fails to cure the violation(s) within the time provided, the permittee
shall pay, upon summary conviction before any District Justice, a
fine of no more than $600. A separate and distinct violation shall
be deemed committed each day on which a violation occurs or continues.
[Amended 3-12-2012 by Ord. No. 2660]
C.
In the case of an emergency which is discovered by the Township or
reported to the Township, the Township shall notify the permittee
via the permittee's emergency telephone number. In the event
that the permittee does not repair the emergency within six hours,
the Township may repair the emergency at the permittee's expense.
E.
In addition to any other remedy, the Township may seek an injunction
to mitigate or terminate any violation hereunder or employ any other
remedy available at law or in equity.
F.
The failure of the Township to insist on timely performance or compliance
by any person holding a ROW use permit shall not constitute a waiver
of the Township's right to later insist on timely performance
or compliance by that person or any other person holding a ROW use
permit.
No ROW use permit shall estop or limit the Township in the full
exercise of its governmental powers to protect the health and safety
of the public, and all other governmental powers may be fully exercised
except as expressly provided herein.
