[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. A facility that serves only to retransmit the television signals of one or more television broadcast stations;
- B. A facility that serves subscribers without using any right-of-way;
- C. 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)] 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;
- D. An open video system that complies with 47 U.S.C. § 573; or
- E. Any facilities of any electric utility used solely for operating its electric utility system.
- COMMERCIAL COMMUNICATION FACILITY
- 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.
- COMMUNICATIONS ACT
- 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.
- FACILITY or FACILITIES
- 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.
- A. 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:
- (1) Whether the amounts are paid in cash, in trade, or by means of some other benefit to grantee or its affiliates;
- (2) 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
- (3) How the amounts are initially recorded by grantee or its affiliates.
- B. Gross revenue shall not be a net of:
- (1) Expense, including but not limited to any operating expense; capital expense; sales expense; or commission;
- (2) Any accrual, including, without limitation, any accrual for commissions; or
- (3) Any other expenditure, regardless of whether such expense, deduction, accrual, or expenditure reflects a cash payment.
- C. 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.
- NON-TOWER COMMERCIAL FACILITY (NON-TOWER CCF)
- 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.
- RIGHT-OF-WAY, RIGHTS-OF-WAY or ROW
- 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.
- STEALTH TECHNOLOGY
- 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.
- TOWER-BASED COMMERCIAL COMMUNICATIONS FACILITY (TOWER-BASED CCF)
- 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.
- TOWNSHIP CODE or CODE
- The ordinances of the Township of Lehigh, Northampton County, Pennsylvania.
- TOWNSHIP ENGINEER
- The person engaged by the Township to perform engineering services on behalf of the Township.
- TOWNSHIP PROPERTY
- All real property now or hereafter owned by the Township whether in fee ownership or other interest.
- TOWNSHIP WORK
- 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.
- UNDERGROUND FACILITIES
- Utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for tower-based facilities.
- WIRELESS COMMUNICATIONS FACILITY (WCF)
- 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.
- WIRELESS SUPPORT STRUCTURE
- 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.
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.
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.
Exemptions. These right-of-way management provisions shall not apply to the occupation or use of the right-of-way to provide:
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.
The transportation of artificial or natural gas, electricity, petroleum or petroleum products or water or any combination of such substances for the public.
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.
The diverting, developing, pumping, impounding, distributing or furnishing of water from either surface or subsurface sources to or for the public.
The collection, treatment or disposal of sewage for the public.
The conveyance or transmission of messages or communications except as set forth herein, by telephone or telegraph for the public.
The diverting, pumping or impounding of water for the development or furnishing of hydroelectric power to or for the public.
The transportation of oxygen or nitrogen, or both, by pipeline or conduit for the public.
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.
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.
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.
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.
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.
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.
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.
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.
All such work in the rights-of-way shall be performed in accordance with applicable safety codes and technical requirements.
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.
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.
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.
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
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.
Determination and posting of security.
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.
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.
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.
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.
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.
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.
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:
The Township shall receive without expense copies of certificates of insurance evidencing coverage stated above.
Grantee agrees that with respect to the above-required insurance, all insurance certificates will contain the following required provisions:
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);
Provide 60 days' written notice to the Township for cancellation, nonrenewal, or material change;
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.
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.
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.
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.