[Adopted 6-21-2018 by Ord. No. 13-2018]
A.
For the purposes of this article, the following terms, phrases, words,
and their derivatives shall have the meanings given herein. When not
inconsistent with the context, words used in the present tense include
the future, words in the plural include the singular, and words in
the singular include the plural. Any term not defined in this section
shall have the meaning ascribed to it in the New Jersey Municipal
Land Use Law, N.J.S.A. 40:55D-1 et seq., unless the context clearly
requires otherwise. In the event that a term is not defined by this
article, said term shall have its common and ordinary meaning.
B.
CARRIER
CITY OF MARGATE CITY
CONDUIT
COUNTY
EASEMENT
FACILITY or FACILITIES
GOVERNING BODY
MUNICIPALITY
PERMITTEE
PERSONAL WIRELESS SERVICE FACILITIES
(1)
(2)
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
STEALTH STRUCTURE
STREET
UTILITY POLE
ZONING OFFICER
ZONING PERMIT
Definitions. As used in this article, the following terms shall have
the meanings indicated:
Any firm, partnership, association, corporation, limited
liability company, or any other legally recognized organization, licensed
by the Federal Communications Commission to provide personal wireless
services or authorized by the New Jersey Board of Public Utilities
to provide telecommunications services in the State of New Jersey.
The City of Margate City, County of Atlantic, State of New
Jersey.
A casing or encasement for wires or cables.
The County of Atlantic, State of New Jersey.
All those areas within the City of Margate City which have
an existing right granted to utility companies, such as, but not limited
to, the electric company, telephone company, or cable company, allowing
the erection and maintenance of utility facilities.
All structures, devices, and materials, including, but not
limited to: antennas, radios and radio cabinets, electrical wires
and cables, fiber-optic cables, communications and video cables and
wires, poles, conduits, pads, backup power supply and other components
of personal wireless service facilities, and appurtenances thereto,
located in the public rights-of-way. Each pole mounting set up shall
be a separate facility for regulatory purposes, applications, and
fees.
The Mayor and Council of the City of Margate City, County
of Atlantic, State of New Jersey.
The City of Margate City, County of Atlantic, State of New
Jersey.
The carrier to which a permit has been issued pursuant this
article and master license agreement for use of public rights-of-way.
Equipment at a fixed location that enables personal wireless
service between user equipment and a communications network, including,
but not limited to:
Equipment associated with personal wireless services such as
private, broadcast and public safety services, as well as unlicensed
wireless services and fixed wireless services; and
Tower, radio transceivers, antennas, coaxial or fiber-optic
cable, regular and backup power supplies and comparable equipment,
regardless of technological configuration.
Any technologies defined in 47 U.S.C. § 332(c)(7),
including commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services, provided to
personal mobile communication devices through wireless facilities
or any fixed mobile wireless services provided using personal wireless
facilities.
The surface, the air space 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 City of Margate City or within an easement to the public
or other easement owned by the City of Margate City.
A new structure for the mounting of facilities, such as a
light pole with integrated antenna, with aesthetics found to be reasonably
acceptable to the Zoning Officer, with input from the governing body,
if deemed necessary.
Any street, avenue, boulevard, road, parkway, viaduct, drive
or other way as defined in the Municipal Land Use Law, N.J.S.A. 40:55D-7.
A tall wooden pole that is used to support telephone wires,
electrical wires, etc.
The Administrative Officer as defined in N.J.S.A. 40:55D-3
and the Zoning Officer of the City of Margate City or his/her authorized
designee.
The document signed by the Zoning Officer pursuant to N.J.S.A.
40:55D-18 that is required as a condition precedent to the installation
of an individual facility and which acknowledges that the facility
complies with the provisions of this article, or approved deviation
therefrom.
A.
Purpose. The purpose and intent of this article is for the City to
exercise, and where authorized by easement, its lawful authority to
grant, consent to the limited use of the public rights-of-way and
to allow the attachment of facilities only to existing utility poles
located therein pursuant to N.J.S.A. 48:19 subject to certain conditions
as stated herein, in order to allow the prompt deployment of facilities
while also effectively managing the public rights-of-way and protecting
the aesthetic and safety interests of the public.
B.
Facilities subject to this article. This Ordinance applies to all
facilities, as herein defined, within the public rights-of-way, except
as otherwise provided in any existing franchise, license or similar
agreement. The deployment of facilities on private property and public
property outside of the public rights-of-way shall not be controlled
by this article or the master license agreement, but by the City Zoning
Ordinance[1] and the New Jersey Municipal Land Use Law. In no event
shall this article apply to the City or facilities owned or operated
by the City.
C.
Master license agreement required. Every carrier seeking to install
facilities in the public rights-of-way, excluding those holding a
franchise, license or similar agreement with the City, shall first
enter into the master license agreement substantially complying with
the requirements of this article and apply for and obtain a zoning
permit as provided herein. The execution of the master license agreement
by the carrier and the City shall grant the City's consent to the
carrier to utilize the public rights-of-way pursuant to N.J.S.A. 48:19
and N.J.S.A. 27:16-6 and shall control the installation, maintenance,
and removal of the facilities.
D.
Duration of consent and removal. The nonexclusive consent granted
to the carrier shall expire in 25 years unless earlier terminated.
The carrier may cancel this agreement upon 60 days' prior written
notice to the City of Margate City. Upon expiration of such consent,
or at such earlier date that the carrier ceases to operate its facilities
for a period of 90 consecutive days, the carrier shall remove its
facilities and restore the right-of-way at its sole cost and expense.
A.
Permit required. No carrier, without first filing an application
and obtaining a zoning permit from the City Zoning Officer pursuant
to N.J.S.A. 40:55D-18, shall construct any facility within any public
right-of-way.
B.
Application requirements. The application shall contain, at a minimum,
the following:
(1)
The carrier's name and address and the telephone number of the contact
person for such carrier;
(2)
The applicant's name and address, if different than the carrier,
and the telephone number of the contact person for such applicant;
(3)
The names, addresses, and telephone numbers of the professional consultants,
if any, advising the applicant with respect to the application;
(4)
A brief description of the proposed work;
(5)
A plan with specifications of the facility showing the work proposed,
including sufficient information regarding the components of the facility,
including their types and quantities;
(6)
Any request for a deviation from one or more provisions of this article;
and
(7)
Such additional information as may be reasonably required by the
City Zoning Officer.
C.
Application fees. All applications for zoning permits pursuant to
this article shall be accompanied by a fee of $500 for each independent
facility as compensation to the City for expenses incurred in processing
the application as permitted by N.J.S.A. 54:30A-124.
A.
Installation of facilities. It shall be lawful for wireless communications
carriers to install facilities in the public rights-of-way on existing
poles only, and they shall comply with all requirements of this article
and the terms and conditions of the master license agreement. All
applicants shall obtain any and all approvals necessary from the owner
and/or operator of the utility poles to be used.
B.
Other approvals. All applicants shall obtain any and all approvals
necessary from any other governmental agency in addition to the owner
and/or operator of the wooden utility poles to be used.
C.
Height. No antenna or attachment to an existing utility pole shall
exceed the height of that pole by more than six feet.
D.
New poles. No new poles shall be erected for the purpose of placing
facilities regulated herein. The setting of utility poles is regulated
by the New Jersey Board of Public Utilities ("BPU"). The City authorizes
only the utility company to set utility poles in the public rights-of-way
in their normal course as they deem appropriate and/or necessary,
subject to BPU regulation.
E.
Pole-mounted equipment. Equipment shall be pole-mounted at a minimum
of eight feet from the ground and/or shall conform to all Flood Prevention
Ordinance requirements of the City,[1] including, but not limited to, base flood plus elevations
required, whichever is higher in height, and shall be limited to one
antenna and one cabinet or other mounted device at each site per carrier.
A single antenna shall not exceed a height of four feet and two feet
in width or two antennas each of a maximum dimension of a height of
two feet and width of one foot. The cabinet or other mounted device
may project beyond the side of the pole no more than 30 inches.
F.
Ground-mounted equipment. No ground-mounted equipment is permitted
on or around any pole.
G.
Color and conduit. All antennas, conduit and equipment shall be a
color that blends with the wooden utility pole on which it is mounted.
Any cables or wiring attached to the utility pole shall be covered
with an appropriate conduit.
H.
Construction permits. Subsequent to the issuance of the zoning permit,
the permittee shall obtain any necessary permits required pursuant
to the current Uniform Construction Code adopted in New Jersey prior
to installation.
I.
Underground work. All underground work shall follow standard road
opening permit requirements.
J.
Co-locate. All carriers shall co-locate and cooperate with each other
to minimize the impact and number of facilities on and in the public
rights-of-way.
K.
No permit shall be issued which would permit the construction or
installation of any facilities east of Atlantic Avenue between Atlantic
and the beach, along Ventnor Avenue between Wilson Avenue and Lancaster
Avenue, inclusive (Parkway area), or in the Marven Gardens area, which
area is situate between Ventnor Avenue, Winchester Avenue, Fredericksburg
Avenue and Brunswick Avenue, unless a deviation is granted by the
governing body.
The Zoning Officer shall approve or reject the permit application
within 30 days, unless the Zoning Officer determines that the permit
application is incomplete and insufficient for him to either approve
or reject, in which case the Zoning Officer shall inform the applicant,
in writing, what information is missing. If the application does not
conform to the requirements of this article and no request for a deviation
is made with the application, the Zoning Officer shall reject such
application in writing, stating the reasons therein. If the Zoning
Officer is satisfied that the application conforms to the requirements
of this article, the Zoning Officer shall issue a permit therefor
within 30 days.
A zoning permit from the Zoning Officer shall confirm compliance
with this article and shall authorize the permittee to apply for construction
permits to undertake the work set forth in the plans filed with the
permit application. The permit shall not grant authority to the permittee
to impinge upon the rights of others who may also have an interest
in the public rights-of-way.
A.
Request for deviations. A carrier proposing to deviate from one or
more of the provisions of this article shall do so in writing to the
Zoning Officer as part of the permit application. The request shall
identify each provision of this article from which a deviation is
requested and the reasons why a deviation should be granted.
B.
Authority to grant deviations. The Zoning Officer shall have no authority to grant a deviation from any conditions of § 242-32, Conditions and requirements. The Zoning Officer shall decide for all other requests whether a deviation is authorized by this article and the carrier requesting the deviation has demonstrated that:
(1)
One or more conditions not under the control of the carrier (such
as terrain features or an irregular public right-of-way line or condition)
create a special hardship that would make enforcement of the provision
unreasonable, given the public purposes to be achieved by the provision;
and
(2)
All other designs, methods, materials, locations or facilities that
would conform to the provision from which a deviation is requested
are impracticable in relation to the requested approach.
C.
Additional conditions for granting of a deviation. As a condition
for authorizing a deviation, the Zoning Officer may require the carrier
requesting the deviation to meet reasonable standards and conditions
that may or may not be expressly contained within this article but
which carry out its purposes.
D.
Material deviations. In the event the actual size, type, material,
or location of any facilities installed in the public rights-of-way
deviates in a materially significant way from that which was shown
on the plans submitted with the zoning permit application, the permittee
shall file new plans with the Zoning Officer within 30 days of the
request or be subject to a stop-work order, an order of removal, or
a requirement to apply to the governing body for relief.
E.
Referral to governing body. If the Zoning Officer determines that
that the deviation requested (or existing) is a major deviation and/or
that practical hardship has not been properly demonstrated, the request
shall be referred to the governing body for review. If the governing
body denies the request for a deviation, then the permittee shall,
within 30 days of said denial, either remove the facility from the
public rights-of-way (if installed) or modify the facility so that
it conforms to this article and submit revised plans to the Zoning
Officer therefor for approval.
F.
Review fees. Any reasonable professional fees incurred by the City
in its review of a request for a deviation or as a result of the installation
of a facility in violation of this article, and for which no approval
is granted, shall be paid to the City within 30 days and prior to
the issuance of the zoning permit as permitted by N.J.S.A. 54:30A-124.
An escrow of $2,500 shall be submitted with the request for deviation
to the construction office to cover such fees and be replenished as
deemed appropriate by the Zoning Officer.
A.
Required coverage and limits. Each carrier constructing a facility
in the public rights-of-way shall secure and maintain commercial general
liability insurance with limits of $5,000,000 per occurrence for bodily
injury (including death) and for damage or destruction to property
and $5,000,000 general aggregate insuring the carrier as named insured
and including the City as an additional insured as their interest
may appear under this agreement on the policies.
B.
Copies required. The carrier shall provide copy of certificates of
insurance reflecting the requirements of this section to the City
within 10 days following zoning approval and prior to obtaining a
construction permit pursuant to this article.
C.
Self-insurance. A carrier may self-insure all or a portion of the insurance coverage and limit requirements required by Subsection A of this section. A carrier that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insured under Subsection A or the requirements of Subsection B of this section. A carrier that elects to self-insure shall provide to the City evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit required under Subsection A of this section. Proof of such financial ability to self-insure shall be provided to the City within 10 days following the effective date of the master license agreement and prior to obtaining a permit pursuant to this article.
D.
Effect of insurance and self-insurance on carrier's liability. The
legal liability of the carrier to the City and any person for any
of the matters that are the subject of the insurance policies or self-insurance
required by this section shall not be limited by such insurance policies
or self-insurance or by the recovery of any amounts thereunder; however,
neither the City nor the carrier shall be liable to the other for
consequential, incidental, exemplary or punitive damages on account
of any activity pursuant to this article.
Prior to constructing a facility in the public rights-of-way
or where authorized by easement, and as a precondition to the issuance
of a permit pursuant to this article, the carrier shall execute the
master license agreement, agreeing, among other things, to indemnify
and hold harmless the City against any claim of liability or loss
from personal injury or property damage resulting from or arising
out of the negligence or willful misconduct of the carrier, its employees,
contractors or agents, except to the extent such claims or damage
may be due to or caused by the negligence or willful misconduct of
the City, or its employees, contractors or agents. The City will provide
the carrier with prompt, written notice of any claim covered by this
indemnification; provided that any failure of the City to provide
any such notice, or to provide it promptly, shall not relieve the
carrier from its indemnification obligation in respect of such claim,
expect to the extent the carrier can establish actual prejudice and
direct damages as a result thereof. The City shall cooperate with
the carrier in connection with the carrier's defense of such claim.
The carrier shall defend the City, at the City's request, against
any claim with counsel of the City's choosing that is reasonably satisfactory
to the carrier.
A.
Right to revoke permit. The City Zoning Officer may revoke or suspend
a permit issued pursuant to this article for one or more of the following
reasons:
(1)
Materially false or incomplete statements in the permit application;
(2)
Noncompliance with one or more provisions this article for which
a deviation has not been allowed;
(3)
The permittee's facilities within the public rights-of-way present
a direct or imminent threat to the public health, safety, or welfare;
(4)
The permittee's failure to construct the facilities substantially
in accordance with the permit and approved plans; or
(5)
Violation of the terms and conditions of the master license agreement.
B.
Notice of revocation or suspension. The City Zoning Officer shall
send written notice of its intent to revoke or suspend a permit issued
pursuant to this article, stating the reason or reasons for the revocation
or suspension and the alternatives available to the permittee under
this section.
C.
Permittee alternatives upon receipt of notice of revocation or suspension.
Upon receipt of a written notice of revocation or suspension from
the City Zoning Officer, the permittee shall have the following options:
(1)
Immediately provide the City with evidence that no cause exists for
the revocation or suspension;
(2)
Immediately correct, to the satisfaction of the City Zoning Officer,
the deficiencies stated in the written notice, providing written proof
of such correction to the City Zoning Officer within 10 business days
after the receipt of the written notice of revocation; or
(3)
Within 10 days, remove the facilities located within the public rights-of-way
and restore the public rights-of-way to the satisfaction of the City
Zoning Officer, providing written proof of such removal to the City
Zoning Officer within 10 business days after receipt of the written
notice of revocation. The City Zoning Officer may, in his discretion,
extend the time periods provided in this subsection. To be effective,
extensions must be in writing.
Notification of change. A carrier shall notify the City no less
than 30 days following the transfer of ownership of any facility in
the public rights-of-way or change in identity of the carrier. The
rights and obligations given to the carrier pursuant to the master
license and zoning permit shall be binding on and benefit the new
owner of the carrier or the facility, its successors and assigns,
who shall have all the obligations and privileges enjoyed by the former
owner under the master license agreement, zoning permit, and all applicable
laws, ordinances, rules and regulations, including this article, with
respect to the work and facilities in the public rights-of-way.
A.
Warning signs, protective devices, and flaggers. The carrier is responsible
for providing and installing warning signs, protective devices and
flaggers, when necessary for protection of the public and the carrier's
workers when performing work on the public rights-of-way.
B.
Interference with traffic. All work shall be phased so that there
is minimum interference with pedestrian and vehicular traffic.
C.
Compliance. The carrier shall take immediate action to correct any
deficiencies in traffic protection requirements that are brought to
the carrier's attention by the City Zoning Officer, City Engineer,
Fire Department, or Police Department.
A.
Notice.
(1)
Within 30 days following written notice from the City, any carrier
with facilities in the public rights-of-way shall, at its own expense,
temporarily or permanently remove, relocate, change or alter the position
of any facilities: whenever the City determines that:
(a)
Such removal, relocation, change or alteration is reasonably
necessary for the construction, repair, maintenance, or installation
of any City improvement in or upon the public rights-of-way; or
(b)
The equipment is interfering with or adversely affecting proper
operation of the light or other poles; or
(c)
It is necessary for the widening of the public rights-of-way.
(2)
In such instance, the City of Margate City shall cooperate with carrier
to find a replacement location for the facility that will provide
similar radio frequency coverage to the facility removed or relocated.
B.
Removal of unauthorized facilities. Within 30 days following written
notice from the City Zoning Officer to any carrier that owns, controls,
or maintains any unauthorized facility or related appurtenances within
any public rights-of-way, it shall, at its own expense, remove all
or any part of such facilities or appurtenances. A facility is unauthorized
and subject to removal, but not limited to, in the following circumstances:
(1)
Upon expiration or termination of the permittee's license, unless
otherwise permitted by applicable law;
(2)
If the facility was constructed without the prior grant of a zoning
permit;
(3)
If the facility was constructed without prior issuance of a required
construction permit;
(4)
If the facility was constructed at a location not permitted by the
permittee's permit; or
(5)
Upon abandonment of the facility.
(a)
Abandonment will be presumed where a facility has not been used
for the purpose for which it was installed for a period of 90 consecutive
days or more, and where there have been no efforts to repair or renew
the use during the ninety-day period. The carrier owning, controlling
or maintaining the facility shall have the burden of establishing
to the City Zoning Officer that the facility is still being used within
30 days of the notice. All notices described herein shall be in writing
and sent by recognized national overnight courier (e.g., United States
Postal, Federal Express or UPS) for which proof of delivery is supplied.
Failure to respond to the City Zoning Officer's request for information
regarding the abandonment of the facility shall constitute a presumption
of abandonment. Upon the City Zoning Officer's determination and final
written notification to the carrier of such abandonment, the carrier
shall have 60 days within which to:
(b)
If the entity believes that the determination of abandonment
by the City Zoning Officer is incorrect, it may file a written appeal
with the governing body within 45 days of the City Zoning Officer's
determination. If the entity fails to prevail on appeal, or fails
to reactivate, or transfer to another active user, or remove the service
facility, the City shall have the right to have the facilities removed
at the carrier's sole expense. The City shall be entitled to reimbursement
for all costs and expenses associated with the removal of any facility
thereafter.
Upon completion of all construction or maintenance of facilities,
the carrier shall remove all debris and restore the right-of-way to
a clean and safe condition in a timely manner and to the satisfaction
of the City Zoning Officer.
A.
General. facilities within public rights-of-way shall be maintained
by or for the carrier at the carrier's sole expense. The carrier shall
not damage the public right-of-way and shall keep the public right-of-way
free of all debris. If any portion of the public right-of-way suffers
damage by reason of access by the carrier, then, in that event, the
carrier, at its sole cost and expense, shall immediately repair all
such damage or replace the damaged portion of the public right-of-way
and restore the damaged portion of the property to its condition prior
to the occurrence of such damage.
B.
Emergency maintenance procedures. The noncompliance with normal procedures
for securing a required permit shall be excused when a carrier reasonably
determines that an emergency exists.
(1)
If an emergency creates a hazard on the traveled portion of the public
rights-of-way, the carrier shall take immediate steps to provide all
necessary protection for traffic on the roadway, including the use
of signs, lights, barricades or flaggers.
(2)
In an emergency, the carrier shall, as soon as practical, notify
the City Zoning Officer or his or her duly authorized agent and the
Margate City Police Department of the emergency, informing him or
her as to what steps have been taken for protection of the traveling
public and what will be required to make the necessary repairs. On
nights and weekends, the carrier shall notify the Margate City Police
Department of an emergency if the City Zoning Officer is unavailable.
If the nature of the emergency is such as to interfere with the free
movement of traffic, the Margate City Police Department shall be notified
immediately. To the extent that the City of Margate City has actual
knowledge of the displacement or damage to any facility, it shall
inform the carrier upon learning of the same.
Nothing in this article shall be construed as limiting any additional
or further remedies that the City may have for enforcement of this
article or the right of a carrier to appeal any decision to the state
courts of New Jersey or the United States District Court for the District
of New Jersey.
