[HISTORY: Adopted by the Borough Council of the Borough of
Irwin 3-8-2017 by Ord. No. 949. Amendments noted where applicable.]
A.
The purpose of this chapter is to establish uniform standards for
the design, permitting, maintenance, and use of wireless communications
facilities within the rights-of-way of the Borough of Irwin. The Borough
of Irwin recognizes the importance of wireless communications and
their attendant facilities in providing high-quality communications
service to the Borough's residents, businesses, and emergency management
and response organizations. The Borough of Irwin also has a responsibility
to protect the public, to enhance public safety, and to minimize the
adverse visual and dangerous effects of such facilities through the
standards set forth in this chapter.
B.
It is the Borough of Irwin's intent to:
(1)
Accommodate the need for wireless communications facilities in the
rights-of-way of the Borough while regulating their activities so
as to ensure the provision for necessary services;
(2)
Provide for the managed development of wireless communications facilities
in the rights-of-way of the Borough in a manner that enhances the
benefits of wireless communications and accommodates the needs of
Borough residents, persons utilizing the rights-of-way, and wireless
carriers in accordance with federal and state laws and regulations;
(3)
Establish procedures for the design, location, siting, construction,
installation, maintenance and removal of wireless communications facilities
in the Borough rights-of-way;
(4)
Address new wireless technologies, including, but not limited to,
distributed antenna systems, data collection units, cable Wi-Fi and
other wireless communications facilities;
(5)
Minimize the adverse effects and the number of such facilities through
proper design, location, siting, screening, material, color and finish
and by requiring that competing providers of wireless communications
services co-locate their commercial communications antennas and related
facilities on existing towers;
(6)
Promote the health, safety and welfare of the Borough's residents.
As used in this chapter, the following terms shall have the
meanings indicated:
An antenna used for the transmission or reception of wireless
signals by amateur radio operators.
Any system of wires, rods, discs, panels, flat panels, dishes,
whips, or other similar devices used for the transmission or reception
of wireless signals. An antenna may include an omnidirectional antenna
(rod), directional antenna (panel), parabolic antenna (disc) or any
other wireless antenna. An antenna shall not include tower-based wireless
communications facilities as defined below.
The mounting of one or more WCFs, including antennas, on
an existing tower-based WCF or on any structure that already supports
at least one non-tower WCF.
A network of spatially separated antenna sites connected
to a common source that provides wireless service within a geographic
area or structure.
A condition that:
Federal Communications Commission.
The vertical distance measured from the ground level, including
any base pad, to the highest point on a tower-based WCF, including
antennas mounted on the tower and any other appurtenances.
A WCF or site which consists of a single pole structure,
designed and erected on the ground or on top of a structure, to support
communications antennas and connecting appurtenances.
All non-tower wireless communications facilities, including,
but not limited to, antennas and related equipment. Non-tower WCFs
shall not include support structures for antennas or any related equipment
that is mounted to the ground or at ground level.
Any piece of equipment related to, incidental to, or necessary
for the operation of a tower-based WCF or non-tower WCF. By way of
illustration, not limitation, "related equipment" includes generators
and base stations.
Camouflaging methods applied to wireless communications towers,
antennas and other facilities which render them more visually appealing
or blend the proposed facility into the existing structure or visual
backdrop in such a manner as to render it minimally 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, and light poles.
A modification to an existing wireless communications facility
substantially changes the physical dimensions of a tower or base station
if it meets any of the following criteria:
For tower-based WCF in the rights-of-way, it increases the height
of the facility by more than 10% or 10 feet, whichever is less;
For those tower-based WCFs in the public rights-of-way, it protrudes
from the edge of the structure by more than six feet;
It involves installation of more than the standard number of
new equipment cabinets for the technology involved, but not to exceed
four cabinets;
It entails any excavation of deployment outside the current
site of the tower-based WCF; or
It does not comply with conditions associated with prior approval
of construction or modification of the tower-based WCF unless the
noncompliance is due to an increase in height, increase in width,
or addition of cabinets.
A structure that is intended for transmitting or receiving
television, radio, or telephone communications, excluding those used
exclusively for dispatch communications. This definition not shall
include tower-based wireless communications facilities.
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. DAS hub facilities are considered to be tower-based WCF.
Pennsylvania Wireless Broadband Collocation Act (53 P.S.
§ 11702.1 et seq.).
Transmissions through the airwaves including, but not limited
to, infrared line of sight, cellular, PCS, microwave, satellite, or
radio signals.
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 communications services.
Any person that applies for a wireless communications facility
building permit, zoning approval and/or permission to use the public
right-of-way (ROW) or other Borough-owned land or property.
A freestanding structure, such as a tower-based wireless
communications facility or any other support structure that is constructed
primarily to support the placement or installation of a wireless communications
facility if approved by the Borough.
A.
The following regulations shall apply to all WCFs in the rights-of-way:
(1)
WCFs in the right-of-way (hereinafter "ROW") are permissible following
the application for and issuance of a right-of-way access permit.
Said permit may only be issued a) to a public utility, as defined
by the Public Utility Code, and b) if the terms and conditions of
this chapter are satisfied.
(2)
Right-of-way access permit.
(a)
No work shall be conducted unless and until a right-of-way access
permit is issued by the Borough.
(b)
No permit shall be granted under this chapter until the person
or entity desiring the same made an application for the permit and
paid all necessary fees and costs, in the amount as established, from
time to time, by resolution of the Borough Council. Such application
shall comprise an agreement by the applicant that the applicant agrees
to adhere to all the terms of this chapter and that any failure to
do so shall constitute a violation of this chapter.
(c)
No permit shall be granted until the applicant has provided
a bond or other financial security in the amount prescribed by the
Borough Engineer, based upon the extent of the work and the character
of the right-of-way disturbance, including any opening or excavation
of the right-of-way. Such security shall guarantee that the permit
holder shall be responsible for maintaining the portion of the disturbed
right-of-way by and the restored surface for a period of 12 months
after the completion of the resurfacing of the right-of-way.
(3)
Co-location. WCFs in the ROW shall be co-located on existing poles,
such as existing utility poles or light poles. If co-location is not
technologically feasible, the WCF applicant shall locate its non-tower
WCF on existing poles or freestanding structures that do not already
act as wireless support structures with the Borough's approval. The
applicant shall provide the Borough with an entire, complete, and
executed agreement with the owner of such existing pole and/or structure
evidencing the applicant's permission to co-locate.
(a)
Tower-based WCF in right-of-way. If co-location on any existing
pole or structure is not available, the applicant may request the
construction of a new tower-based WCF in the right-of-way. The applicant
shall demonstrate that the proposed tower-based WCF cannot be accommodated
by co-location on an existing or approved structure or building. The
right-of-way access permit may be denied if the applicant has not
made a good faith effort to mount the commercial communications antenna(s)
on an existing pole or structure. The WCF applicant shall demonstrate
that it contacted the owners of tall structures, buildings, and towers
within a 1/4 mile radius of the site proposed, sought permission to
install an antenna on those structures, buildings, and/or towers and
was denied for one of the following reasons:
[1]
The proposed antenna and related equipment would exceed the
structural capacity of the existing building, structure or tower,
and its reinforcement cannot be accomplished at a reasonable cost.
[2]
The proposed antenna and related equipment would cause radio
frequency interference with other existing equipment for that existing
building, structure, or tower and the interference cannot be prevented
at a reasonable cost.
[3]
Such existing buildings, structures, or towers do not have adequate
location, space, access, or height to accommodate the proposed equipment
or to allow it to perform its intended function.
[4]
A commercially reasonable agreement could not be reached with
the owner of such building, structure, or tower.
(b)
Engineer certification. Prior to the Borough's issuance of a
permit authorizing construction and erection of a tower-based WCF,
a structural engineer registered in Pennsylvania shall issue to the
Borough a written certification of the proposed WCF's ability to meet
the structural standards offered by either the Electronic Industries
Association or the Telecommunication Industry Association and certify
the proper construction of the foundation and the erection of the
structure. This certification shall be provided with the application
or at a minimum be made as a condition attached to any approval given
such that the certification be provided prior to issuance of any permits.
(c)
Additional antennas. As a condition of approval for all tower-based
WCF in the rights-of-way, the WCF applicant shall provide the Borough
with a written commitment that it will allow other service providers
to co-locate antennas on tower-based WCF where technically and economically
feasible. The owner of a tower-based WCF shall not install any additional
antennas without obtaining the prior written approval of the Borough,
subject to the provisions of this chapter.
(d)
Signs. All tower-based WCFs shall post a sign in a readily visible
location identifying the name and phone number of a party to contact
in the event of an emergency. The only other signage permitted on
the WCF shall be that required by the FCC or any other federal or
state agency.
(e)
Lighting. No tower-based WCF shall be artificially lighted,
except as required by law. If lighting is required, the WCF applicant
shall provide a detailed plan for sufficient lighting, demonstrating
as unobtrusive and inoffensive an effect as is permissible under state
and federal regulations. The WCF applicant shall promptly report any
outage or malfunction of FAA-mandated lighting to the appropriate
governmental authorities and to the Borough Code Enforcement Officer.
(f)
Noise. Tower-based WCFs shall be operated and maintained so
as not to produce noise in excess of applicable noise standards under
state law and the Borough Code, except in emergency situations requiring
the use of a backup generator, where such noise standards may be exceeded
on a temporary basis only.
(g)
Timing of approval. Within 30 calendar days of the date that
an application for a tower-based WCF is filed with the Borough, the
Borough shall notify the WCF applicant in writing of any information
that may be required to complete such application. All applications
for tower-based WCFs shall be acted upon within 150 days of the receipt
of a fully completed application for the approval of such tower-based
WCF, and the Borough shall advise the WCF applicant in writing of
its decision. If additional information was requested by the Borough
to complete an application, the time required by the WCF applicant
to provide the information shall not be counted toward the one-hundred-fifty-day
review period.
(h)
FCC license. Each person that owns or operates a tower-based
WCF over 40 feet in height shall submit a copy of its current FCC
license, including the name, address, and emergency telephone number
for the operator of the facility.
(4)
Prohibited on certain structures. Non-tower WCFs may not be located
on single-family detached residences, single-family attached residences,
or any residential accessory structure.
(5)
Noncommercial usage exemption. Borough residents utilizing satellite
dishes and antennas for the purpose of maintaining television, phone,
radio and/or Internet connections at their respective residences shall
be exempt from the design regulations enumerated in this chapter.
This exemption shall include amateur radio operators.
(6)
WCFs located in the right-of-way, whether tower-based or non-tower,
shall not be greater than 10 feet taller than the existing utility
poles, lights or buildings within a one-block radius of the WCF. In
accordance with industry standards, all WCF applicants must submit
documentation to the Borough justifying the total height of the WCF.
Such documentation shall be analyzed in the context of such justification
on an individual basis. The Borough may require a reduction in height
if the proposed height is not justified.
(7)
Nonconforming wireless support structures. Non-tower WCFs shall be
permitted to co-locate upon nonconforming tower-based WCF and other
nonconforming structures existing on the effective date of this chapter.
Co-location of WCFs upon existing tower-based WCFs is encouraged even
if the tower-based WCF is nonconforming as to use within a zoning
district.
(8)
Public safety communications. WCFs shall not interfere with public
safety communications or the reception of broadband, television, radio
or other communications services enjoyed by occupants of nearby properties.
(9)
Timing of approval for co-location applications in the rights-of-way.
The following time frames shall apply to applications for co-located
WCFs:
(a)
Applications for co-located non-tower WCFs that do not substantially
change the dimensions of the underlying wireless support structure
or that otherwise do not fall under the Pennsylvania Wireless Broadband
Collocation Act. Within 30 calendar days of the date that an application
for a non-tower WCF is filed with the Borough, the Borough shall notify
the WCF applicant in writing of any information that may be required
to complete such application. Within 90 calendar days of receipt of
a complete application, the Borough shall make its final decision
on whether to approve the application and shall advise the WCF applicant
in writing of such decision.
(b)
Applications for co-locations that do substantially change the
dimensions of the underlying wireless support structure or that otherwise
fall under the Pennsylvania Wireless Broadband Collocation Act. Within
30 calendar days of the date that an application for a non-tower WCF
is filed with the Borough, the Borough shall notify the WCF applicant
in writing of any information that may be required to complete such
application. Within 60 calendar days of receipt of a complete application,
the Borough shall make its final decision on whether to approve the
application and shall advise the WCF applicant in writing of such
decision.
(10)
Insurance. Each person that owns or operates a tower-based WCF
greater than 40 feet in height shall provide the Borough with a certificate
of insurance evidencing general liability coverage in the minimum
amount of $5,000,000 per occurrence and property damage coverage in
the minimum amount of $5,000,000 per occurrence covering the tower-based
WCF. Each person and/or entity that owns or operates a tower-based
WCF 40 feet or less in height or any non-tower WCF shall provide the
Borough with a certificate of insurance evidencing general liability
coverage in the minimum amount of $1,000,000 per occurrence and property
damage coverage in the minimum amount of $1,000,000 per occurrence
covering each WCF.
(11)
Indemnification. Each person that owns or operates a WCF shall,
at its sole cost and expense, indemnify, defend and hold harmless
the Borough of Irwin, its elected and appointed officials, employees
and agents, at all times against any and all claims for personal injury,
including death, and property damage arising in whole or in part from,
caused by or connected with any act or omission of the person, its
officers, agents, employees or contractors arising out of, but not
limited to, the construction, installation, operation, maintenance
or removal of the WCF. Each person that owns or operates a WCF shall
defend any actions or proceedings against the Borough in which it
is claimed that personal injury, including death, or property damage
was caused by the construction, installation, operation, maintenance
or removal of a WCF. The obligation to indemnify, hold harmless and
defend shall include, but not be limited to, the obligation to pay
judgments, injuries, liabilities, damages, reasonable attorneys' fees,
reasonable expert fees, court costs and all other costs of indemnification.
(12)
Maintenance. To the extent permitted by law, the following maintenance
requirements shall apply:
(a)
The WCF shall be fully automated and unattended on a daily basis
and shall be visited only for maintenance or emergency repair.
(b)
Such maintenance shall be performed to ensure the upkeep of
the facility in order to promote the safety and security of the Borough's
residents.
(c)
All maintenance activities shall utilize nothing less than the
best available technology for preventing failures and accidents.
B.
The following regulations shall apply to all co-located non-tower
WCF that do not substantially change the physical dimensions of the
wireless support structure to which they are attached and/or fall
under the Pennsylvania Wireless Broadband Collocation Act:
(1)
Building permit required, excepted from the right-of-way access permit.
WCF applicants proposing the modification of an existing tower-based
WCF shall obtain a building permit from the Borough. In order to be
considered for such permit, the WCF applicant must submit a permit
application to the Borough in accordance with applicable permit policies
and procedures. The Borough shall issue a determination on the building
permit within 90 days of the date of the receipt of a completed application.
(2)
Related equipment. Ground-mounted related equipment greater than
three cubic feet shall not be located within 50 feet of a lot in residential
use or zoned residential.
(3)
Permit fees. The Borough may assess appropriate and reasonable permit
fees directly related to the Borough's actual costs in reviewing and
processing the application for approval of a non-tower WCF.
C.
The following regulations shall apply to all non-tower WCFs that
do substantially change the wireless support structure to which they
are attached, all tower-based WCFs, and/or that otherwise do not fall
under the Pennsylvania Wireless Broadband Collocation Act:
(1)
Right-of-way access permit required. Any WCF applicant proposing
the construction of a new non-tower WCF or tower-based WCF, or the
modification of an existing non-tower WCF, shall first obtain a right-of-way
access permit from the Borough. New constructions, modifications,
and replacements that do fall under the WBCA shall be not subject
to the permit process. The right-of-way access permit application
shall demonstrate that the proposed facility complies with all applicable
provisions in the Borough of Irwin Code.
(2)
Permit fees. The Borough may assess appropriate and reasonable permit
fees directly related to the Borough's actual costs in reviewing and
processing the application for approval of a non-tower WCF, as well
as related inspection, monitoring and related costs.
(3)
Inspection. The Borough reserves the right to inspect any WCF to
ensure compliance with the provisions of this chapter and any other
provisions found within the Borough Code or state or federal law.
The Borough and/or its agents shall have the authority to enter the
property upon which a WCF is located at any time, upon reasonable
notice to the operator, to ensure such compliance.
(4)
Retention of experts. The Borough may hire any consultant(s) and/or
expert(s) necessary to assist the Borough in reviewing and evaluating
the application for approval of the WCF and, once approved, in reviewing
and evaluating any potential violations of the terms and conditions
of these WCF provisions. The WCF applicant and/or owner of the WCF
shall reimburse the Borough for all costs of the Borough's consultant(s)
in providing expert evaluation and consultation in connection with
these activities.
A.
WCF installations located above the surface grade in the public ROW,
including, but not limited to, those on streetlights and joint utility
poles, shall consist of equipment components that are no more than
six feet in height and that are compatible in scale and proportion
to the structures upon which they are mounted. All equipment shall
be the smallest and least visibly intrusive equipment feasible.
B.
The WCF shall employ the most current stealth technology available
in an effort to appropriately blend into the surrounding environment
and minimize aesthetic impact. Antennas and related equipment shall
be treated to match the supporting structure and may be required to
be painted, or otherwise coated, to be visually compatible with the
support structure upon which they are mounted.
C.
All WCFs shall be designed, constructed, operated, maintained, repaired,
modified and removed in strict compliance with all current applicable
technical, safety and safety-related codes, including but not limited
to the most recent editions of the American National Standards Institute
(ANSI) Code, National Electrical Safety Code, and National Electrical
Code. Any WCF shall at all times be kept and maintained in good condition,
order and repair by qualified maintenance and construction personnel,
so that the same shall not endanger the life of any person or any
property in the Borough of Irwin.
D.
All WCF structures shall be designed to withstand the effects of
wind gusts of at least 100 miles per hour in addition to the standard
designed by the American National Standards Institute as prepared
by the engineering departments of the Electronics Industry Association,
and Telecommunications Industry Association (ANSI/TIA-222, as amended).
E.
All WCFs shall comply with all federal and state laws and regulations
concerning aviation safety.
F.
A WCF shall not, by itself or in conjunction with other WCFs, generate
radio frequency emissions in excess of the standards and regulations
of the FCC, including, but not limited to, the FCC Office of Engineering
Technology Bulletin 65 entitled "Evaluating Compliance with FCC Guidelines
for Human Exposure to Radio Frequency Electromagnetic Fields," as
amended.
The Borough shall determine the time, place, and manner of construction,
maintenance, repair and/or removal of all non-tower WCF in the ROW
based on public safety, traffic management, physical burden on the
ROW, and related considerations. For public utilities, the time, place,
and manner requirements shall be consistent with the police powers
of the Borough and the requirements of the Public Utility Code.
WCFs and related equipment shall be located so as not to cause
any physical or visual obstruction to pedestrian or vehicular traffic,
or to otherwise create safety hazards to pedestrians and/or motorists
or to otherwise inconvenience public use of the ROW as determined
by the Borough. In addition:
A.
In no case shall ground-mounted related equipment, walls, or landscaping
be located within 18 inches of the face of the curb or within an easement
extending onto a privately owned lot.
B.
Ground-mounted related equipment that cannot be placed underground
shall be screened, to the fullest extent possible, through the use
of landscaping or other decorative features to the satisfaction of
the Borough. Said related equipment, together with required screening,
shall not obstruct the public right-of-way.
C.
Required electrical meter cabinets shall be screened to blend in
with the surrounding area to the satisfaction of the Borough.
D.
Any graffiti on any wireless support structures or any related equipment
shall be removed at the sole expense of the owner.
E.
Any proposed underground vault related to the WCF shall be reviewed
and approved by the Borough.
A.
Within 60 days following written notice from the Borough, or such
longer period as the Borough determines is reasonably necessary or
such shorter period in the case of an emergency, an owner of a WCF
in the ROW shall, at its own expense, temporarily or permanently remove,
relocate, change or alter the position of any WCF when the Borough,
consistent with its police powers and applicable Public Utility Commission
regulations, has determined that such removal, relocation, change
or alteration is reasonably necessary under the following circumstances:
(1)
The construction, repair, maintenance or installation of any Borough
or other public improvement in the right-of-way;
(2)
The operations of the Borough or other governmental entity in the
right-of-way;
(3)
Vacation of a street or road or the release of a utility easement;
or
(4)
An emergency as determined by the Borough.
B.
In the event that use of a WCF is discontinued, the owner shall provide
written notice to the Borough of its intent to discontinue use and
the date when the use shall be discontinued. Unused or abandoned WCFs
or portions of WCFs shall be removed as follows:
(1)
All abandoned or unused WCFs and accessory facilities shall be removed
within two months of the cessation of operations at the site unless
a time extension is approved by the Borough.
(2)
If the WCF or accessory facility is not removed within two months
of the cessation of operations at a site, or within any longer period
approved by the Borough, the WCF and/or associated facilities and
equipment may be removed by the Borough and the cost of removal assessed
against the owner of the WCF.
[Amended 7-14-2021 by Ord. No. 995]
In addition to permit fees as described in this section, every
WCF in the ROW is subject to the Borough's right to fix annually
a fair and reasonable fee, to be set by Council by way of resolution,
to be paid for use and occupancy of the ROW. Such compensation for
ROW use shall be directly related to the Borough's actual ROW
management costs, including, but not limited to, the costs of the
administration and performance of all reviewing, inspecting, permitting,
supervising and other ROW management activities by the Borough. The
owner of each WCF shall pay an annual fee to the Borough to compensate
the Borough for the Borough's costs incurred in connection with
the activities described above.
The provisions of this chapter are severable, and if any section
or part of this chapter is adjudged by any court of competent jurisdiction
to be invalid or unenforceable, the remainder of this chapter shall
remain in full force and effect.
