[Ord. No. 5-97]
As used in this chapter, the following terms shall have the
meanings indicated:
a.
ALTERNATIVE TOWER STRUCTURE – Shall include but not be limited
to man-made trees, clock towers, bell steeples, light poles and similar
alternative-design mounting structures that camouflage or conceal
the presence of antennas or towers.
b.
ANTENNA – Shall mean any exterior transmitting or receiving
device mounted on a tower, building or structure and used in communications
that radiate or capture electromagnetic waves, digital signals, analog
signals, radio frequencies (excluding radar signals), wireless telecommunications
signals or other communication signals.
c.
BACKHAUL NETWORK – Shall mean the lines that connect a provider's
towers/cell sites to one or more cellular telephone switching offices,
and/or long distance providers, or the public switched telephone network.
d.
FAA – Shall mean the Federal Aviation Administration.
e.
FCC – Shall mean the Federal Communications Commission.
f.
GOVERNING AUTHORITY – Shall mean the mayor and council of the
Borough of Cliffside Park.
g.
PLANNING BOARD – Shall mean the Borough of Cliffside Park planning
board whose statutory authority is defined by the Municipal Land Use
Law N.J.S.A. 40:55D-1 et seq.
h.
PREEXISTING TOWERS AND ANTENNAS – Shall have the meaning set forth in section 26-2d of this chapter.
i.
HEIGHT – Shall mean, when referring to a tower or other structure,
the distance measured from the finished grade of the parcel to the
highest point on the tower or other structure including the base pad
and any antenna, even if said highest point is an antenna.
j.
PUBLIC OFFICER – Shall mean the zoning official of the Borough
of Cliffside Park.
k.
TOWER – Shall mean any structure that is designed and constructed
primarily for the purpose of supporting one or more antennas, including
but not limited to self-supporting lattice towers, guy towers or monopole
towers. The term includes radio and television transmission towers,
microwave towers, common-carrier towers, cellular telephone towers,
alternative tower structures and the like. The term includes the structure
and any support thereto.
l.
MUNICIPAL LAND USE LAW – Shall mean Municipal Land Use Law
40:55D-1 et seq.
[Ord. No. 5-97]
b.
District height limitations. The requirements set forth in this chapter
shall govern the location of towers that exceed, and antennas that
are installed at a height in excess of, the height limitations specified
for each zoning district. The height limitations applicable to buildings
and structures shall not apply to towers and antennas.
c.
Public property. Antennas or towers located on property owned, leased
or otherwise controlled by the governing authority shall be exempt
from the requirements of this chapter, provided a license or lease
authorizing such antenna or tower has been approved by resolution
by the governing authority. Said approved municipal sites utilized
for the purpose of constructing towers and/or antennas shall be treated
as engaging in a permitted use under this chapter.
d.
Amateur radio: receive-only antennas. This chapter shall not govern
any tower or the installation of any antennas that are under 70 feet
in height and is owned and operated by a federally-licensed amateur
radio station operator or is used exclusively as a reception-only
antenna. Any permits under this section shall be subject to the appropriate
federal regulations.
e.
Pre-existing towers and antennas. Any tower or antenna on which a permit has been properly issued prior to the effective date of this chapter shall not be required to meet the requirements of this chapter other than the requirements of subsections 26-3.5 and 26-3.6. This includes permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired. Any such towers or antennas shall be referred to in this chapter as preexisting antennas.
f.
AM array. For purposes of implementing this chapter, an AM array,
consisting of one or more tower units and supporting ground system
which functions as one AM broadcasting antenna, shall be considered
one tower. Measurements for setbacks and separation distances shall
be measured from the outer perimeter of the towers included in the
AM array. Additional tower units may be added within the perimeter
of the AM array by right.
[Ord. No. 5-97]
The purpose of this chapter is to establish general guidelines
for the siting of wireless communications towers and antennas. The
goals of this chapter are to: (1) protect residential areas and land
uses from potential adverse impacts of towers and antennas; (2) encourage
the location of towers in nonresidential areas; (3) minimize the total
number of towers throughout the community; (4) strongly encourage
the joint use of new and existing tower sites as a primary option
rather than construction of additional single-use towers; (5) encourage
users of towers and antennas to locate them, to the extent possible,
in areas where the adverse impact on the community is minimal; (6)
encourage users of towers and antennas to configure them in a way
that minimizes the adverse visual impact of the towers and antennas
through careful design, siting, landscape screening, and innovative
camouflaging techniques; (7) enhance the ability of the providers
of telecommunications services to provide such services to the community
quickly, effectively and efficiently; (8) consider the public health
and safety of communication towers; and (9) avoid potential damage
to adjacent properties from tower failure through engineering and
careful siting of tower structures. In furtherance of these goals,
the planning board shall give due consideration to the Borough of
Cliffside Park's master plan, zoning map, existing land uses and environmentally
sensitive areas in approving sites for the location of towers and
antennas.
[Ord. No. 5-97]
Antennas and towers may be considered either principal or accessory
uses. A different existing use of an existing structure on the same
lot shall not preclude the installation of an antenna or tower on
such lot. For the purpose of determining whether the installation
of a tower or antenna complies with zoning regulations, including
but not limited to setback requirements, lot-coverage requirements
and other such requirements, the dimensions of the entire lot shall
control, even though the antennas or towers may be located on leased
parcels within such lots. Towers that are constructed and antennas
that are installed in accordance with the provisions of this chapter
shall not be deemed to constitute the expansion of a nonconforming
use or structure.
[Ord. No. 5-97]
Each applicant for an antenna and/or tower shall provide to
the planning board an inventory of all existing towers, antennas or
sites approved for towers or antennas that are either within the jurisdiction
of the governing authority and within one-quarter mile of the border
thereof, including specific information about the location, height
and design of each tower. The planning board may disseminate information
pursuant to the right-to-know law or any other law or regulation pertaining
to the dissemination of public records to any organization seeking
to locate antennas within the jurisdiction of the governing authority
provided, however, that the planning board is not, by disseminating
such information, in any way representing or warranting that such
sites are available or suitable.
[Ord. No. 5-97]
The guidelines set forth in this subsection 26-3.4 shall govern the location of all towers and the installation of all antennas governed by this chapter provided, however, that the planning board may grant variances to these requirements if it determines that the goals of this chapter are better served thereby and in accordance with the Municipal Land Use Law (MLUL).
a.
Towers shall maintain a galvanized steel finish, subject to any applicable
standards of the FAA, and be painted a neutral color so as to reduce
visual obtrusiveness.
b.
At a tower site, the design of the buildings and related structures
shall, to the extent possible, use materials, colors, textures, screening
and landscaping that will blend the tower facilities to the natural
setting and built environment.
c.
If an antenna is installed on a structure other than a tower, the
antenna and supporting electrical and mechanical equipment must be
of a neutral color that is identical to, or closely compatible with,
the color of the supporting structure so as to make the antenna and
related equipment as visually unobtrusive as possible.
d.
Towers shall not be artificially lighted unless required by the FAA
or other applicable authority. If lighting is required, the planning
board may review the available lighting alternatives and approve the
design that would cause the least disturbance to the surrounding views.
[Ord. No. 5-97]
All towers must meet or exceed current standards and regulations
of the FAA, FCC and any other agency of the federal government with
the authority to regulate towers and antennas. If such standards and
regulations are changed, then the owners of the towers and antennas
governed by this chapter shall bring such towers and antennas into
compliance with such revised standards and regulations within six
months of the effective date of such standards and regulations unless
a more stringent compliance schedule is mandated by the controlling
federal agency. Failure to bring towers and antennas into compliance
with such revised standards and regulations shall constitute grounds
for the removal of the tower or antenna at the owner's expense. Any
such removal shall be ordered by the planning board as all approvals
granted herein shall be univocally deemed conditional approvals subject
to this provision.
[Ord. No. 5-97]
To ensure the structural integrity of towers, the owner of a
tower shall ensure that the tower is maintained in compliance with
standards contained in the BOCA building code and the applicable standards
for towers that are published by the Electronic Industries Association
as amended from time to time. If, upon inspection, the governing authority
concludes that a tower fails to comply with such codes and standards
and constitutes a danger to persons or property, then, upon notice
being provided to the owner of the tower, the owner shall have ten
days to bring such tower into compliance with such standards. If the
owner fails to bring such tower into compliance within said ten days,
the mayor and council, in conjunction with the Borough of Cliffside
Park's Construction Code Official, may order the removal of such tower
at the owner's expense and lien the property for all costs incurred,
including professional fees expended.
[Ord. No. 5-97]
For purposes of measurement, tower setbacks and separation distances
shall be calculated and applied to facilities located in the Borough
of Cliffside Park irrespective of municipal and county jurisdictional
boundaries.
[Ord. No. 5-97]
Towers and antennas shall be regulated and permitted pursuant
to this chapter and shall not be regulated or permitted as essential
services, public utilities or private utilities.
[Ord. No. 5-97]
Owners and/or operators of towers or antennas shall certify
that all franchises required by law for the construction and/or operation
of a wireless communication system in the Borough of Cliffside Park
have been obtained and shall file a copy of all required franchises
with the planning board.
[Ord. No. 5-97]
For purposes of this chapter, any conditional use request, variance request, or appeal of an administratively approved use or conditional use shall require public notice to all abutting property owners and all property owners of properties that are located within the corresponding separation distance listed in subsection 26-6.6b, Table 2, in addition to any notice otherwise required by the zoning ordinance.
[Ord. No. 5-97]
No signs shall be allowed on an antenna or tower.
[Ord. No. 5-97]
Buildings and support equipment associated with antennas or towers shall comply with the requirements of section 26-7.
[Ord. No. 5-97]
The Borough of Cliffside Park encourages the users of towers
and antennas to submit a single application for approval of multiple
towers and/or antenna sites. Applications for approval of multiple
sites shall be given priority in the review process.
[Ord. No. 5-97]
All access roads leading to the tower and antennas area shall
be paved with asphalt or constructed with gravel. The access road
shall include an area for sufficient parking and turnaround radius
for at least one vehicle.
[Ord. No. 5-97]
[Ord. No. 5-97]
The following uses are specifically permitted:
a.
Locating a tower or antenna, including the placement of additional
buildings or other supporting equipment used in connection with said
tower or antenna, in any industrial or commercial zoning district
provided, however, that such tower shall be set back from any existing
off-site residence a distance equal to the height of the tower;
b.
Installing an antenna on an existing structure other than a tower
(such as a building, sign, light pole, water tower or other free-standing,
nonresidential structure) that is 50 feet in height or greater, so
long as said additional antenna adds no more than 20 feet to the height
of said existing structure;
c.
Installing an antenna on any existing tower of any height, so long
as the addition of said antenna adds no more than 20 feet to the height
of said existing tower and said existing tower is not a pre-existing
tower provided, however, that such specific permitted use shall not
include the placement of additional buildings or other supporting
equipment used in connection with said antenna; and
d.
In any event, pursuant to paragraphs b and c hereof, such tower shall
be set back from any existing off-site residence a distance equal
to the height of the tower.
[Ord. No. 5-97]
a.
The planning board has exclusive jurisdiction pursuant to the MLUL
and this chapter, unless it is determined that the Board of Adjustment
has jurisdiction pursuant to the provisions of the Municipal Land
Use Law, N.J.S.A. 40:55D-1 et seq. (Use Variance), at which point
the provisions of this chapter shall apply to the board of adjustment.
b.
Each applicant for administrative approval shall apply to the planning board or the zoning board of adjustment as indicated supra, providing the information set forth in subsections 26-6.2 and 26¬6.4 of this chapter and a nonrefundable fee as established by resolution of the planning board to reimburse the Borough of Cliffside Park for the costs of reviewing the application.
d.
The planning board or the zoning board of adjustment as indicated
supra, shall respond to each such application within the time parameter
established pursuant to the MLUL after receiving an application deemed
complete.
e.
In connection with any such administrative approval, the planning board or the zoning board of adjustment as indicated supra, may, in order to encourage shared use, administratively waive any zoning district setback requirements in subsection 26-6.5 or separation distances between towers in subsection 26-6.6 by up to 50 percent.
f.
In connection with any such administrative approval, the planning
board or the zoning board of adjustment as indicated supra, may, in
order to encourage the use of monopoles, administratively allow the
reconstruction of an existing tower to monopole construction.
g.
If site plan approval is denied, the applicant may appeal the denial
in accordance with the provisions of the MLUL.
[Ord. No. 5-97]
The following uses may be approved by the planning board after
receipt of site plan approval:
a.
Locating a tower or antenna, including the placement of additional
buildings or other supporting equipment used in connection with said
tower or antenna, in any business or commercial zoning district.
b.
Locating antennas on existing structures or towers consistent with
the terms of paragraphs b1 and b2 below.
1.
Antennas on existing structures. Any antenna which is not attached
to a tower may be approved by the planning board as an accessory use
to any commercial, industrial, professional, institutional or multi-family
structure of eight or more dwelling units, provided:
2.
Antennas on existing towers. An antenna which is attached to an existing
tower may be approved by the planning board and, to minimize adverse
visual impacts associated with the proliferation and clustering of
towers, collocation of antennas by more than one carrier on existing
towers shall take precedence over the construction of new towers,
provided such collocation is accomplished in a manner consistent with
the following:
(a)
A tower which is modified or reconstructed to accommodate the
collocation of an additional antenna shall be of the same tower type
as the existing tower, unless the planning board allows reconstruction
as a monopole.
(b)
c.
Locating any tower in the business or commercial district upon proof that all MLUL variance and/or site plan criteria and municipal criteria have been satisfied. Included in the site plan review the applicant shall present proofs that a licensed professional engineer certifies that the tower can structurally accommodate the number of shared users proposed by the applicant. If the planning board concludes that the tower is in conformity with the goals set forth herein, and the requirements of section 26-3; the tower meets the setback requirements in subsection 26-6.5 and separation distances in subsection 26-6.6; and the tower meets the following height and usage criteria:
d.
Locating any alternative tower structure in a zoning district other than industrial or commercial that in the judgment of the planning board is in conformity with the goals set forth in section 26-3 of this chapter.
e.
Installing a cable microcell network through the use of multiple
low-powered transmitters/receivers attached to existing wireline systems,
such as conventional cable or telephone wires, or similar technology
that does not require the use of towers.
[Ord. No. 5-97]
The following provisions shall govern site plan approval and
the issuance of conditional use permits:
a.
If the tower or antenna is not a permitted use under section 26-4 of this chapter, then a conditional use permit shall be required for the construction of a tower or the placement of an antenna in all zoning districts.
b.
In granting a conditional use permit, the governing authority may
impose conditions to the extent the governing authority concludes
such conditions are necessary to minimize any adverse effect of the
proposed tower on adjoining properties.
c.
Upon either filing. i.e., use permits or site plan approval, all
proofs of an engineering nature that the applicant submits, whether
civil, mechanical or electrical, shall be certified by a licensed
professional engineer.
d.
An applicant for a conditional use permit shall submit the information
described in this section and a non-refundable fee as established
by resolution of the planning board to reimburse the Borough of Cliffside
Park for the costs of reviewing the application.
[Ord. No. 5-97]
Each applicant requesting a conditional use permit and/or site
plan approval under this chapter shall submit the following information:
a.
A scaled site plan clearly indicating the location, type and height of the proposed tower, on-site land uses and zoning adjacent land uses and zoning (including when adjacent to other municipalities), Master Plan classification of the site and all properties within the applicable separation distances set forth in subsection 26-6.6, adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower and any other structures, topography, parking and other information deemed by the planning board to be necessary to assess compliance with this chapter.
b.
Legal description of the parent tract and leased parcel (if applicable).
c.
The setback distance between the proposed tower and the nearest residential
unit, platted residentially zoned properties, and unplatted residentially
zoned properties.
d.
The separation distance from other towers described in the inventory of existing sites submitted pursuant to subsection 26-3.3 shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known.
e.
A landscape plan showing specific landscape materials.
f.
Method of fencing, and finished color and, if applicable, the method
of camouflage and illumination.
h.
A notarized statement by the applicant as to whether construction
of the tower will accommodate collocation of additional antennas for
future users.
i.
Identification of the entities providing the backhaul network for
the tower(s) described in the application and other cellular sites
owned or operated by the applicant in the municipality.
j.
A description of the suitability of the use of existing towers, other
structures or alternative technology not requiring the use of towers
or structures to provide the services to be provided through the use
of the proposed new tower.
k.
A description of the feasible location(s) of future towers or antennas
within the Borough of Cliffside Park based upon existing physical,
engineering, technological or geographical limitations in the event
the proposed tower is erected.
l.
Any other information deemed by the governing authority to be necessary
to assess compliance with the MLUL and this chapter.
[Ord. No. 5-97]
The governing authority shall consider the following factors
in determining whether to issue a conditional use permit, although
the planning board may grant a variance to any provision of this chapter
if the statutory criteria has been satisfied.
a.
Height of the proposed tower;
b.
Proximity of the tower to residential structures and residential
district boundaries;
c.
Nature of uses on adjacent and nearby properties;
d.
Surrounding topography;
e.
Surrounding tree coverage and foliage;
f.
Design of the tower, with particular reference to design characteristics
that have the effect of reducing or eliminating visual obtrusiveness;
g.
Proposed ingress and egress; and
[Ord. No. 5-97]
No new tower shall be permitted unless the applicant demonstrates
to the reasonable satisfaction of the governing authority that no
existing tower, structure or alternative technology that does not
require the use of towers or structures can accommodate the applicant's
proposed antenna. Evidence submitted to demonstrate that no existing
tower or structure can accommodate the applicant's proposed antenna
may consist of any of the following:
a.
No existing towers or structures are located within the geographic
area required to meet applicant's engineering requirements.
b.
Existing towers or structures are not of sufficient height to meet
applicant's engineering requirements.
c.
Existing towers or structures do not have sufficient structural strength
to support applicant's proposed antenna and related equipment.
d.
The applicants proposed antenna would cause electromagnetic interference
with the antennas on the existing towers or structures or the antennas
on the existing towers or structures would cause interference with
the applicant's proposed antenna.
e.
The fees, costs or contractual provisions required by the owner in
order to share an existing tower or structure or to adapt an existing
tower or structure for sharing are unreasonable. Costs exceeding new
tower development are presumed to be unreasonable.
f.
The applicant demonstrates that there are significant other limiting
factors that render existing towers and structures unsuitable.
g.
Applicant shall have the affirmative obligation of proving that it
has attempted to enter into a contract with the owners of the existing
tower and structure:
1.
This obligation shall include copies of all correspondence as to
rates, cost of contributions, etc.
2.
Copies of rejection of the offers propounded on the applicant by
the owners of the existing structure and/or tower.
3.
Written cost proposals indicating actual quoted figures required
by the owner of the existing structures and/or tower.
4.
A detailed cost analysis indicating the cost to the applicant to
construct new tower and/or structure.
h.
The applicant demonstrates that an alternative technology that does
not require the use of towers or structures, such as a cable microcell
network using multiple low-powered transmitters/receivers attached
to a wireline system, is unsuitable. Costs of alternative technology
that exceed new tower or antenna development shall not be presumed
to render the technology unsuitable.
[Ord. No. 5-97]
The following setback requirements shall apply to all towers
and antennas for which a conditional use permit is required provided,
however, that the governing authority may reduce the standard setback
requirements if the goals of this chapter would be better served thereby:
[Ord. No. 5-97]
The following separation requirements shall apply to all towers
and antennas for which a conditional use permit is required; provided,
however, that the planning board may reduce the standard separation
requirements if the goals of this chapter would be better served thereby.
a.
Separation from off-site uses/designated areas.
1.
Tower separation shall be measured from the base of the tower to
the lot line of the off-site uses and/or designated areas as specified
in Table 1, except as otherwise provided in Table 1.[1]
[1]
Editor's Note: Table 1, referred to herein, may be found as
an attachment to this chapter as Appendix A.
2.
Separation requirements for towers shall comply with the minimum
standards established in Table 1.
b.
Separation distances between towers.
1.
Separation distances between towers shall be applicable for and measured
between the proposed tower and preexisting towers. The separation
distances shall be measured by drawing or following a straight line
between the base of the existing tower and the proposed base, pursuant
to a site plan, of the proposed tower. The separation distances (listed
in linear feet) shall as shown in Table 2.[2]
[2]
Editor's Note: Table 2, referred to herein, may be found as
an attachment to this chapter as Appendix B.
[Ord. No. 5-97]
Towers shall be enclosed by security fencing not less than eight
feet in height and shall be slatted and equipped with an appropriate
anti-climbing device provided, however, that the planning board may
grant a variance of the requirements as it deems appropriate.
[Ord. No. 5-97]
The following requirements shall govern the landscaping surrounding
the towers for which a site plan and conditional use permit is required
provided, however, that the planning board may grant variance requirements
if the goals of this chapter would be better served thereby.
a.
Tower facilities shall be landscaped with a buffer of plant materials
that effectively screens the view of the tower compound from adjacent
property. The standard buffer shall consist of a landscaped strip
at least four feet wide and 12 feet high outside the perimeter of
the compound.
b.
In locations where the visual impact of the tower would be minimal,
the landscaping requirement may be reduced or waived altogether.
c.
Existing mature tree growth and natural land forms on the site shall
be preserved to the maximum extent possible. In some cases, such as
towers sited on large, wooded lots, natural growth around the property
perimeter may be sufficient buffer.
[Ord. No. 5-97]
The equipment cabinet or structure used in association with
antennas shall comply with the following:
a.
The cabinet or structure shall not contain more than 200 square feet
of gross floor area or be more than 15 feet in height. In addition,
for buildings and structures which are less than 65 feet in height,
the related unmanned equipment structure, if over 150 square feet
of gross floor area or 12 feet in height, shall be located on the
ground and shall not be located on the roof of the structure.
b.
If the equipment structure is located on the roof of the building,
the area of the equipment structure and other equipment and structures
shall not occupy more than 15 percent of the roof area.
c.
Equipment storage buildings or cabinets shall comply with all applicable
building codes.
d.
Equipment storage buildings or cabinets shall be sufficiently insulated
so that any noise generated from the equipment shall not exceed 50
decibels.
[Ord. No. 5-97]
The equipment cabinet or structure used in association with
antennas shall be located in accordance with the following:
a.
In residential districts, the equipment cabinet or structure may
be located:
1.
In a front or side yard provided the cabinet or structure is no greater
than 12 feet in height or 150 square feet of gross floor area and
the cabinet/structure is located a minimum of ten feet from all lot
lines. The cabinet/structure shall be screened by an evergreen hedge
with an ultimate height of at least 42-48 inches and a planted height
of at least 36 inches.
2.
In a rear yard, provided the cabinet or structure is no greater than
12 feet in height or 200 square feet in gross floor area. The cabinet/structure
shall be screened by an evergreen hedge with an ultimate height of
eight feet and a planted height of at least 36 inches.
b.
In commercial or industrial districts, the equipment cabinet or structure
shall be no greater than 15 feet in height or 200 square feet in gross
floor area. The structure or cabinet shall be screened by an evergreen
hedge with an ultimate height of eight feet and a planted height of
at least 36 inches. In all other instances, structures or cabinets
shall be screened from view of all residential properties which abut
or are directly across the street from the structure or cabinet by
a solid fence eight feet in height or an evergreen hedge with an ultimate
height of eight feet and a planted height of at least 36 inches.
[Ord. No. 5-97]
The related unmanned equipment structure shall not contain more
than 200 square feet of gross floor area or be more than 15 feet in
height, and shall be located in accordance with the minimum yard requirements
of the zoning district in which located.
[Ord. No. 5-97]
[Ord. No. 5-97]
Any antenna or tower that is not operated for a continuous period
of 12 months shall be considered abandoned; and the owner of such
antenna or tower shall remove same within 90 days of receipt of notice
from the building department notifying the owner of such abandonment.
If such antenna or tower is not removed within 90 days, the mayor
and council may order the removal of such antenna or tower at the
owner's expense and lien the property for the costs associated therewith
inclusive of professional fees. If there are two or more users of
a single tower, then this provision shall not become effective until
all users cease using the tower.
[Ord. No. 5-97]
a.
Not Expansion of Nonconforming Use. Towers that are constructed,
and antennas that are installed, in accordance with the provisions
of this chapter shall not be deemed to constitute the expansion of
a nonconforming use or structure.
b.
Preexisting Towers. Preexisting towers shall be allowed to continue
their usage as they presently exist. Routine maintenance (including
replacement with a new tower of like construction and height) shall
be permitted on such preexisting towers. New construction other than
routine maintenance on a preexisting tower shall comply with the requirements
of this chapter.
c.
Rebuilding Damaged or Destroyed Nonconforming Towers or Antennas. Notwithstanding section 26-8, bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain administrative approval or a conditional use permit and without having to meet the separation requirements specified in subsections 26-6.5 and 26-6.6. The type, height and location of the tower onsite shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in section 26-8.
[Ord. No. 5-97]
The applicant shall pay any real estate or payments in lieu
of taxes required or contributed to as a result of a lease agreement
between the applicant and municipality. In addition, the applicant
shall reimburse the municipality for its reasonable costs and expenses,
including legal fees incurred by the municipality in connection with
the negotiation of any lease agreement.
[Ord. No. 5-97]
Upon formal application and prior to approval by the planning
board, the applicant must present a site plan to the building department
of the municipality prepared by a certified architect/planner and
engineer at least 30 days prior to the activation of the proposed
antenna. All site plans are subject to approval of the building department
and borough engineer of the municipality. Submitted drawings must
depict the proposed antenna facilities, any improvements to be installed
on the premises and the actual location of all equipment and improvements.
Said drawings shall be accompanied by a complete and detailed inventory
of all equipment, personal property, antenna facilities, variance
requirements and a list of all property owners residing within 200
feet of the site of the new facility.
[Ord. No. 5-97]
The antenna facilities shall be installed on the premises in
a good and workmanlike manner. The municipality reserves the right
to require the applicant to paint the antenna facilities in a manner
consistent with the Property Maintenance Code of the municipality
and consistent with the color of the building or to otherwise shield
the antenna facilities from view.
a.
Applicant shall, at his own expense, maintain any equipment on or
attached to the premises in a safe condition, in good repair and in
a manner suitable to the municipality so as not to conflict with the
use of or other leasing of the tower by the municipality. Applicant
shall not interfere with the use of the tower, the owned premises,
related facilities or other equipment of other applicants.
b.
Applicant shall have sole responsibility for the maintenance, repair
and security of his equipment, personal property, antenna facilities
and leasehold improvements and shall keep same in good repair and
condition during the lease term.
c.
Applicant shall keep the premises free of debris and anything of
a dangerous, noxious or offensive nature or which would create a hazard
or undue vibration, heat, noise or interference.
d.
In the event the municipality or any other applicant undertakes painting,
construction or other alterations on the tower, applicant shall take
reasonable measures at applicant's cost to cover applicant's equipment,
personal property or antenna facilities and protect such from paint
and debris fallout which may occur during the painting, construction
or alteration process.
[Ord. No. 5-97]
As used in section 26-14, "municipality" shall mean the Borough of Cliffside Park the mayor and council and planning board of the Borough of Cliffside Park; and "applicant" shall mean the applicant for an antenna and/or tower.
[Ord. No. 5-97]
It shall be a default if applicant defaults in the payment or
provision of rent or any other sums to the land owner or municipality
when due and does not cure such default within ten days; or if applicant
defaults in the performance of any other covenant or condition of
the lease and does not cure such other default within 30 days after
written notice from the land owner or municipality specifying the
default complained of; or if applicant abandons or vacates the premises;
or if applicant is adjudicated as bankrupt or makes any assignment
for the benefit of creditors; or if applicant becomes insolvent or
the municipality reasonably believes itself to be insecure.
In the event of a default, the land owner or municipality shall
have the right, at its option, in addition to and not exclusive of
any other remedy the fee owner may have by operation of law without
any further demand or notice, to re-enter the premises and eject all
persons therefrom, and either (a) declare the lease at an end, in
which event the applicant shall immediately remove the antenna facilities
and pay the fee owner a sum of money equal to the total of (i) the
amount of the unpaid rent accrued through the date of termination;
(ii) the amount by which the unpaid rent reserved for the balance
of the term exceeds the amount of such rental loss that the applicant
proves could be reasonably avoided (net of the costs of such reletting);
and (iii) any other amount necessary to compensate the fee owner for
all detriment proximately caused by the applicant's failure to perform
its obligations under the lease; or (b) without terminating the lease,
relet the premises, or any part thereof, for the account of the applicant
upon such terms and conditions as the fee owner may deem advisable
and any monies received from such reletting shall be applied first
to the expenses of such reletting and collection, including reasonable
attorneys' fees, any real estate commissions paid, and thereafter
towards the payment of all sums due or to become due to the fee owner
hereunder, and if a sufficient sum shall not be thus realized to pay
such sums and other charges, the applicant shall pay the fee owner
any deficiency monthly, notwithstanding that the fee owner may have
received rent in excess of the rent stipulated in the lease in previous
or subsequent months, and the fee owner may bring an action therefor
as such monthly deficiency shall arise.
Upon termination of the lease for any reason, applicant shall
remove its equipment, personal property, antenna facilities and lease
hold improvements from the premises on or before the date of termination
and shall repair any damage to the premises caused by such equipment,
normal wear and tear excepted, all at applicants sole cost and expense.
Any such property or facilities which are not removed by the end of
the lease term shall become the property of the municipality.
[Ord. No. 5-97]
The applicant shall post with the municipality a bond in an
amount equal to 120 percent of the amount required for the construction
of said antenna. Said amount shall be available to the fee owner for
removal of the antenna structure should circumstances deem this necessary.
[Ord. No. 5-97]
During the term of the lease, applicant shall maintain, or cause
to be maintained, in full force and effect and at its sole cost and
expense, the following types and limits of insurance:
a.
Workmen's compensation insurance meeting applicable statutory requirements
and employer's liability insurance with minimum limits of one hundred
thousand ($100,000.00) dollars for each accident.
b.
Comprehensive commercial general liability insurance with minimum
limits of ten million ($10,000.000.00) dollars as the combined single
limit for each occurrence of bodily injury, personal injury and property
damage. The policy shall provide blanket contractual liability insurance
for all written contracts and shall include coverage for products
and completed operations liability: independent contractor's liability;
and coverage for property damage from perils of explosion, collapse
or damage to underground utilities commonly known as coverage.
c.
Automobile liability insurance covering all owned, hired and unowned
vehicles in use by the applicant, its employees and agents, with personal
protection insurance and property protection insurance to comply with
the provisions of State law with minimum limits of two million ($2,000,000.00)
dollars as the combined single limit for each occurrence for bodily
injury and property damage.
d.
At the start of and during the period of any construction, builder's
all-risk insurance together with an installation floater or equivalent
property coverage covering cables, materials, machinery and supplies
of any nature whatsoever which are to be used in or incidental to
the installation of the antenna facilities. Upon completion of the
installation of the antenna facilities, the applicant shall substitute
for the foregoing insurance policies of fire, extended coverage and
vandalism and malicious mischief insurance on the antenna facilities.
The amount of insurance at all times shall be representative of the
insurable value installed or constructed.
e.
Business interruption insurance coverage in an amount sufficient
to cover such loss of revenues for the period of time which it would
take, under normal circumstances, to repair or replace that part(s)
of the antenna facility which is damaged and caused the loss of revenue.
f.
All policies other than those for workmen's compensation shall be
written on an occurrence and not on a claims made basis.
g.
The coverage amounts set forth above may be met by a combination
of underlying and umbrella policies so long as in combination the
limits equal or exceed those stated.
[Ord. No. 5-97]
All policies, except for business interruption and workmen's
compensation policies, shall name the fee owner and municipality and
all associated, affiliated, allied and subsidiary entities of the
municipality, now existing or hereafter created, and their respective
officers, boards, commissions, employees, agents and contractors,
as their respective interests may appear as additional insureds (herein
referred to as the "additional insureds"). Each policy which is to
be endorsed to add additional insureds hereunder, shall contain cross-liability
wording, as follows:
"In the event of a claim being made hereunder by one insured
for which another insured is or may be liable, then this policy shall
cover such insured against whom a claim is or may be made in the same
manner as if separate policies had been issued to each insured hereunder."
[Ord. No. 5-97]
Certificates of insurance for each insurance policy required
to be obtained by the applicant in compliance with this section, along
with written evidence of payment of required premiums, shall be filed
and maintained with the municipality annually during the term of the
lease. The applicant shall immediately advise the municipality of
any claim or litigation that may result in liability to the municipality.
[Ord. No. 5-97]
All insurance policies maintained pursuant to the lease shall
contain the following endorsement:
"At least sixty (60) days prior written notice shall be given
to the Municipality by the insurer of any intention not to renew such
policy or to cancel, replace or materially alter same, such notice
to be given by registered mail to the parties named in this paragraph
of the Lease."
[Ord. No. 5-97]
All insurance shall be effected under valid and enforceable
policies, insured by insurers licensed to do business in the State
of New Jersey or surplus line carriers on the State of New Jersey
Insurance Commissioner's approved list of companies qualified to do
business in the State of New Jersey. All insurance carriers and surplus
line carriers shall be rated A+ or better by the A.M. Best Company.
[Ord. No. 5-97]
All insurance policies may be written with deductibles not to
exceed twenty-five thousand ($25,000.00) dollars unless approved in
advance by the municipality. The applicant agrees to indemnify and
save harmless the municipality, the indemnities and additional insureds
from and against the payment of any deductible and from the payment
of any premium on any insurance policy required to be furnished by
the lease.
[Ord. No. 5-97]
The applicant shall require that each and every one of its contractors
and their subcontractors who perform work on the premises carry, in
full force and effect, workmen's compensation, comprehensive public
liability and automobile liability insurance coverage of the type
which the applicant is required to obtain under the terms of this
section with appropriate limits of insurance.
[Ord. No. 5-97]
Once during each calendar year during the term of the lease,
the municipality may review the insurance coverages to be carried
by the applicant. If the municipality determines that higher limits
of coverage are necessary to protect the interests of the municipality
or the additional insureds, the applicant shall be so notified and
shall obtain the additional limits of insurance at its sole cost and
expense.
[Ord. No. 5-97]
a.
The applicant may not assign the lease or sublet the premises without
the prior written consent of the municipality. Any assignment or sublease
shall require site plan review will require an application before
the planning board.
[Ord. No. 5-97]
The applicant's use and operation of its facilities shall not
interfere with the use and operation of other communication facilities
on the roof which pre-existed the applicant's facilities. If the applicant's
facilities cause interference, the applicant shall take all measures
reasonably necessary to correct and eliminate the interference. If
the interference cannot be eliminated in a reasonable time, the applicant
shall immediately cease operating its facility until the interference
has been eliminated. If the interference cannot be eliminated within
30 days, the municipality may terminate the lease. Should any interference
be caused by the applicant's facilities, the planning board may require
the applicant to appear before the board for a re-hearing, requiring
the applicant to put on notice, once again, all property owners within
200 feet of the subject property. The burden shall be placed on the
applicant to prove to the board that no interference is occurring
as a result of the applicant's facilities.
[Ord. No. 5-97]
Additional antennas from other providers may be placed on the
building; and if necessary, the applicant's antennas may be relocated
(at the new provider's expense) so as to accommodate additional antennas.
[Ord. No. 5-97]
The applicant's use of the premises is contingent upon its obtaining
all certificates, permits, zoning and other approvals that may be
required by any federal, state or local authority. Annual permits
shall be required at a cost of one thousand ($1,000.00) dollars annually.
The applicant shall erect, maintain and operate its antenna facilities
in accordance with site standards, statutes, ordinances, rules and
regulations now in effect or that may be issued hereafter by the Federal
Communications Commission or any other governing bodies. "Should any
conflict arise between local zoning ordinances and rules or regulations
promulgated by the F.C.C., the F.C.C. rules and regulations shall
govern."
[Ord. No. 5-97]
a.
If any provision of this chapter or the application of said provision
to any person or circumstance is declared invalid, such invalidity
shall not affect the remaining section of this chapter;
b.
This chapter and the provisions herein are declared to be severable;
c.
If any provisions of this chapter or the application of such provision
to any person or circumstance is declared unconstitutional, same shall
not affect the remaining section of this chapter;
d.
All chapters or part thereof inconsistent herewith are hereby repealed
to the extent of such inconsistencies of this chapter and to this
end the provisions of this act are declared to be severable.
[Ord. No. 5-97]
The applicant shall, at its expense, comply with all present
and future federal, state and local laws, ordinances, rules and regulations
(including laws and ordinances relating to health, radio frequency
emissions, other radiation and safety) in connection with the use,
operation, maintenance, construction and/or installation of the antennas
facilities and/or the premises. The municipality agrees to reasonably
cooperate with the applicant in obtaining, at applicant's expense
(including the municipality's reasonable attorney and administrative
fees), any federal licenses and permits required for or substantially
required by the applicant's use of the premises.
[Added 2-9-2021 by Ord.
No. 2021-02]
This section is titled the "Telecommunications Facilities in
the public right-of-way", and amends all applicable provisions of
the Borough of Cliffside Park Revised General Ordinances, and any
existing local laws, rules, orders, resolutions and ordinances relating
to the subject matter of this chapter.
[Added 2-9-2021 by Ord.
No. 2021-02]
It is the intent of this § 26-30 of Chapter 26, Telecommunications Towers and Antennas, to regulate the placement of telecommunications equipment, including poles, towers, antennas and other infrastructure located on municipal rights-of-way. The placement of telecommunications equipment outside of the municipal right-of-way shall be governed by Chapter 26, Telecommunications Towers and Antennas, § 26-1 through § 26-29.
It is furthermore intended that this section shall control in
the event of any inconsistency between the provisions of this section
and any existing agreements, licenses or franchises in existence and
which govern existing small wireless facilities in the municipal right-of-way,
and that the prevailing terms of this section shall supersede and
replace any conflicting terms in said agreements or licenses, and
shall govern all future relationships between the Borough and the
applicable parties in said licenses and agreements.
[Added 2-9-2021 by Ord.
No. 2021-02]
As used in this section:
Means ministerial review of an application by the Borough
relating to the review and issuance of a permit, including review
by the Construction Official, Zoning Officer, Director of Public Works,
engineer, wireless consultants with knowledge beyond the expertise
of Borough personnel, or other Borough staff or designees to determine
whether the issuance of a permit is in conformity with the applicable
provisions of this section. Administrative permit issuance is non-discretionary
and based on whether an application is in conformity with the provisions
of this section, as well as any other applicable local, state and
federal laws and regulations governing small cell deployment. This
process does not involve the exercise of discretion.
Means communications equipment that transmits and/or receives
over-the-air electromagnetic signals used in the provision of Wireless
Services. This definition does not apply to broadcast antennas, antennas
designed for amateur radio use, or satellite dishes for residential
or household purposes.
Means uniform building, fire, safety, electrical, plumbing,
or mechanical codes adopted by a recognized national code organization
to the extent such codes have been adopted by the Borough or otherwise
are applicable in the jurisdiction.
Means a person or entity who submits an application under
this section.
Means a written request submitted by an applicant to the
Borough for a permit (i) to locate or collocate, or to modify, a communications
facility underground or on any existing support structure, pole, or
tower, or (ii) to construct, modify or replace a new support structure,
pole or tower or any other structure on which a communications facility
will be collocated.
Means the Borough of Cliffside Park, or any agency, department,
district, subdivision or any instrumentality thereof, including, but
not limited to public utility districts, or municipal electric utilities.
The term shall not include courts of the State having jurisdiction
over the Borough or any entities that do not have zoning or permitting
authority or jurisdiction. The Borough may hereinafter be referred
to as the "Borough," "the Borough of Cliffside Park," "Cliffside Park"
or "the Borough."
Means a pole owned, managed or operated by or on behalf of
the Borough.
Means to install, mount, maintain, modify, operate and/or
replace a communications facility on an existing support structure,
pole, or tower or any other structure capable of supporting such communications
facility. "Collocation" has a corresponding meaning. The term does
not include the installation of a new utility pole, tower or support
structure in the public right-of-way.
Means, collectively, the equipment at a fixed location or
locations that enables communication between user equipment and a
communications network, including: (i) radio transceivers, antennas,
coaxial, fiber-optic or other cabling, power supply (including backup
battery), and comparable equipment, regardless of technological configuration;
and (ii) all other equipment associated with any of the foregoing.
A communications facility does not include the pole, tower or support
structure to which the equipment is attached.
Means a cable operator, as defined in 47 U.S.C. § 522(5),
a provider of information service, as defined in 47 U.S.C. § 153(24);
or a provider of telecommunications service, as defined in 47 U.S.C.
§ 153(53); or provider of fixed wireless or other wireless
services as defined in 47 U.S.C. § 332(c)(7)(C)(i).
Means a Borough pole that is specially designed and placed
for aesthetic purposes.
Means a portable, self-contained wireless facility that can
be moved to a specified location or area and provide wireless services
on a temporary or emergency basis such as a "cell on wheels" or "COW,"
"cell on light truck" or "COLT," tethered balloon, tethered drone
or other unmanned device.
Means review of an application by the Borough relating to
the review and issuance of a permit, that is other than an administrative
review. Discretionary review involves discretion on the part of the
Borough (subject to any applicable limits on such discretion) in determining
whether to issue a permit and may be subject to one or more public
hearings or meetings, including appearances before the planning board,
zoning board of adjustment and referral to the Historic Preservation
Commission for commentary and recommendations.
Means an eligible facility request as set forth in 47 C.F.R.
Section 1.6100(b)(3), as may be amended from time to time.
Means the Federal Communications Commission of the United
States.
Means a one-time, nonrecurring charge, whether a fixed amount
or cost-based amount based on time and expense.
Means any prehistoric or historic district, site, building,
structure, or object included in, or eligible for inclusion in, the
National Register maintained by the United States Secretary of the
Interior (in accordance with Section VI.D.1.a.i-v of the Nationwide
Programmatic Agreement codified at 47 C.F.R. Part 1, Appendix C) or
established pursuant to state historic preservation law.
Means, collectively, any and all Federal, State, or local
law, statute, common law, code, rule, regulation, order, or ordinance.
Means any occupant of the public right-of-way, including
any wireless provider, wireless infrastructure provider, utility company,
or public or private entity with a physical presence or right to maintain
a physical presence on, under or across the public right-of-way.
Means (i) with respect to a communications facility and/or the associated support structure, pole or tower, inspections, testing, repair and modifications that maintain functional capacity, aesthetic and structural integrity, and (ii) with respect to a communications facility only, the replacement or upgrade of antennas and/or other components of the communications facility (specifically, such as a swap out or addition of small cell antennas and radio equipment as required by the applicant), with antennas and/or other components substantially similar, in color, aggregate size and other aesthetics to that previously permitted by the Borough (and/or consistent with the same height and volume limits for wireless facilities under this section), so long as the support structure, pole, or tower will structurally support, or prior to installation will be modified to support, the structural load. Modifications are limited to by the structural load analysis supplied by the applicant to the Borough, and by the volume limits in § 26-30.2.8, Design Standards. Modifications beyond the foregoing must be requested in writing by the applicant and are subject to discretionary review by the Borough.
Means a written authorization (in electronic or hard copy
format) required by the Borough to initiate, continue, or complete
installation of a communications facility, or an associated support
structure, pole, or tower.
Means an individual, corporation, limited liability company,
partnership, association, trust, or other entity or organization,
including the Borough.
Means a pole, such as a utility, lighting, traffic, or similar
pole, made of wood, concrete, metal or other material, located or
to be located within the public right-of-way or utility easement.
The term includes the vertical support structure for traffic lights
but does not include a horizontal structure to which signal lights
or other traffic control devices are attached unless the Borough grants
a waiver for such pole. The term does not include electric transmission
poles or structures. A pole does not include a tower or support structure.
Means a communications service provider or a wireless provider.
Means the area on, below, or above property that has been
designated for use as or is used for a public roadway, highway, street,
sidewalk, alley or similar purpose, but not including a federal interstate
highway or other area not within the legal jurisdiction, or within
the legal ownership or control of the municipality.
Means a recurring charge.
Means in connection with an existing pole, support structure
or tower, or communications facility, as the case may be, to replace
(or the replacement of) same with a new structure, similar in design,
size and scale to the existing structure and in conformance with current
Borough building code, zoning provisions and other applicable regulations,
in order to address limitations of, or change requirements applicable
to, the existing structure to structurally support collocation of
a communications facility. In connection with replacement of a pole
or tower to support collocation of a wireless facility, similarity
in size and scale shall be evaluated consistent with 47 C.F.R. 1.6100
(b)(7).
Means a wireless facility that meets both of the following
qualifications: (i) each wireless provider's antenna (including,
without limitation, any strand-mounted antenna) could fit within an
enclosure of no more than three cubic feet in volume; and (ii) all
other wireless equipment associated with the facility is cumulatively
no more than 28 cubic feet in volume. The following types of associated,
ancillary equipment are not included in the calculation of equipment
volume: electric meter, concealment elements, telecommunications demarcation
box, grounding equipment, power transfer switch, cut-off switch, and
vertical cable runs for connection of power and other services. The
following additional parameters apply to small wireless facilities:
(a) Total height of small wireless facility and supporting structure
is less than 50 feet, or the small wireless facility is mounted on
structures no more than 10% taller than adjacent structures, or the
small wireless facility does not extend the existing structure to
a height of greater than 50 feet or by more than 10% of the original
height, whichever is greater.
Means the State of New Jersey.
Means a building, a billboard, a water tank or any other
structure to which a communications facility is or may be attached.
Support structure does not include a pole or a tower.
Means any structure built for the sole or primary purpose
of supporting a wireless facility, such as a self-supporting tower,
a monopole, a lattice tower or a guyed tower. Tower also includes
a structure designed to conceal from the general public the wireless
facility. A tower does not include a pole or a support structure.
Means the area on, below, or above privately-owned property
that has been designated for use as or is used for a specific utility
purpose (such as for electric, cable or other utility purpose), and
is evidenced by a recorded instrument in the public land records pursuant
to a recorded plat, easement or right-of-way or is otherwise a legally
enforceable easement, and does not include any portion of a public
right-of-way.
Means a communications facility installed and/or operated
by a wireless provider. The term does not include: (i) the support
structure, tower or pole on, under, or within which the equipment
is located or collocated; or (ii) coaxial, fiber-optic or other cabling
that is between communications facilities or poles or that is otherwise
not immediately adjacent to or directly associated with a particular
antenna. A small wireless facility is one example of a wireless facility.
Means any person, including a person authorized to provide
telecommunications service in the State, that builds or installs and/or
operates wireless facilities or poles, towers or support structures
on which wireless facilities are or are intended to be used for collocation,
but that is not a wireless services provider.
Means a wireless infrastructure provider or a wireless services
provider.
Means any wireless services including, without limitation,
personal wireless services as that term is defined in 47 U.S.C. § 332(c)(7)(C)(i),
fixed wireless and other wireless services.
Means a person who provides wireless services.
a.
Applicability. Except as otherwise provided herein, the placement,
installation, modification, replacement, repair and upgrade of any
communications facilities, including small wireless facilities, as
well as the associated poles, towers or support structures, in the
public right-of-way shall be governed by this section.
b.
Notice Prior to Any Non-Emergency Work.
1.
The Borough will appoint a designee who will serve as the initial
point of contact for the Borough for all matters pertaining to this
section.
2.
No action, application, installation, upgrade, maintenance, repair,
replacement or, modifications by applicant contemplated by this section
shall be commenced without first giving notice to the Borough designee.
3.
This notice requirement pertains to all work, including ordinary
maintenance, repairs, upgrades and like-for-like equipment swap outs.
c.
Municipal Agreement. Prior to receiving a permit to install a communications
facility in the public ROW, each applicant shall be required to enter
into a municipal agreement (e.g., Right-of-Way Access Agreement, Pole
Attachment Agreement, License Agreement) between the Borough and the
applicant, on terms and conditions substantially the same for all
applicants and existing occupants of the public ROW. The terms and
conditions of such municipal agreement will include the following:
1.
Fees and Rates. As consideration to the Borough for entering into
the municipal agreement and also as a condition precedent for the
issuance of any required permits and approvals to install the applicable
communications facilities in the public right-of-way, the applicant
shall pay the required fees and rates as set forth in Schedule A[1] of this section, and which may be amended or modified
from time to time per revision and modification to local, state and
federal laws and regulations. Said fees shall include application
or one-time fees and recurring right-of-way occupancy rates.
[1]
Editor’s Note: Schedule A, Fees, may be found as an
attachment to this chapter as Attachment 3, Schedule A – Fees.
2.
The Small Cell Permit Application Escrow, as described in Schedule
A,[2] shall be paid upon submission of an application and shall
be held in escrow and billed against actual incurred one-time fees
and costs to process an application, also as described below and in
Schedule A of this section. If said small cell permit application
escrow is insufficient to cover incurred one-time fees as described
below and in Schedule A, then applicant shall submit an additional
amount equal to the initial small cell permit application escrow to
be further billed against incurred one-time fees and costs.
(a)
Reasonable Approximation: All one-time event fees will be a
reasonable approximation of objectively reasonable costs.
(b)
One-Time Fees Apply to All Work: One-time fees and event fees
apply to the initial installation of facilities as well as to any
subsequent upgrade, replacement, modification or alteration of same,
with each instance of an upgrade or repair being a separate project
subject to one-time fees. Maintenance and repair work on an existing
communications facility does not trigger any one-time fees.
[2]
Editor’s Note: Schedule A, Fees, may be found as an
attachment to this chapter as Attachment 3, Schedule A – Fees.
3.
Annual ROW Occupancy Rate shall be as specified in Schedule A[3] of this section and shall be paid within 30 days of the
issuance of the applicable permit and annually thereafter, with payment
being due on the anniversary of the first payment date for the balance
of the term. However, under no circumstances shall the rate be remitted
later than 90 days after the full execution of the applicable municipal
agreement between Borough and applicant.
[3]
Editor’s Note: Schedule A, Fees, may be found as an
attachment to this chapter as Attachment 3, Schedule A – Fees.
4.
Annual Attachment Rate, equal to an amount that represents a reasonable approximation of the objectively reasonable costs incurred by the Borough for the attachment of each small wireless facility to Borough-owned structures in the public right-of-way. This amount shall be paid within 30 days of issuance of the applicable permit(s) and annually thereafter. The annual rates in § 26-30.2.1c1 and 2 combined shall not exceed $270 annually per small wireless facility location, or as subsequently amended by Federal or State Statutes or regulations.
5.
All fees and rates will be applied in a non-discriminatory manner
to all communications service providers.
6.
Make-Ready Fee, shall be determined on a site-specific, engineering basis, for work reasonably necessary to make a particular Borough pole suitable for attachment of the applicable communications facility shall be paid upon submission of the application as more particularly described in § 26-30.2.3 below.
d.
Other Terms.
1.
Term. Unless otherwise agreed to in writing by the Borough and applicant,
the agreement term shall be 10 years.
2.
Safety and Accessibility. The applicant will demonstrate compliance
with applicable safety and accessibility requirements, including those
under Americans with Disabilities Act ("ADA"), OSHA and similar laws.
3.
The municipal agreement shall include, as an appendix thereof, a
schedule containing the location of all proposed small wireless facilities
in the public right-of-way, which the Borough and applicant may update
as necessary without the need for additional review. Said locations
shall be as specific as possible and shall include, but not be limited
to, latitude, longitude, the nearest proximate address, cross streets
as well as lot and block numbers, if available. Applicants shall also
provide for inclusion in the municipal agreement information indicating
the horizontal and approximate vertical location, relative to the
boundaries of the public ROW, of all equipment which it owns or over
which it has control and which is located in any public right-of-way.
4.
Indemnification and Insurance Requirements.
(a)
Insurance. The applicant shall at all times maintain a commercial
general liability insurance policy with a single amount of at least
$1,000,000 per occurrence and in the aggregate covering liability
for any death, personal injury, property damage or other liability
arising out of the construction and operation contemplated herein,
and an excess liability policy (or "umbrella") policy in the amount
of $5,000,000 per occurrence and in the aggregate. The applicant may
use any combination of primary and excess insurance to meet the total
limits required. Such coverage shall be primary, non-contributory
and shall contain a waiver of subrogation. Evidence of same shall
be provided prior to the commencement of any work of any kind by the
applicant. Prior to the commencement of any work pursuant to this
agreement, the applicant shall file with the Borough, a certificate(s)
of insurance with any required endorsements evidencing the coverage
provided by said liability and excess liability policies. The Borough
shall notify applicant within 15 days after the receipt of any claim
or demand to the Borough, either by suit or otherwise, made against
the Borough on account of any of applicant or its sub-contractors,
agents, employees, officers, servants, designees, guests and invitees,
activities pursuant to the rights granted in this agreement. Applicant
shall notify the Borough Clerk within 15 days of receipt of any claim
or demand of applicant or its subcontractors, agents, employees, officer,
servants, designees, guests or invitees by any aggrieved party for
any work or action made pursuant to this section.
(b)
Indemnification. Applicant, its successors, assigns, contractors,
sub-contractors, agents, servants, officers, employees, designees,
guests and invitees, hereby indemnify, defend and hold harmless the
Borough, its successors and assigns, elected officials, officers,
employees, servants, contractors, designees and invitees from and
against any and all personal injury and property damage claims, demands,
suits, actions at law or equity or otherwise, or related judgments,
arbitration determinations, damages, liabilities, decrees of any person(s)
or entities claiming to be or being harmed as a result of applicant's
actions under this agreement and costs in connection therewith except
to the extent that such claims, demands, suits, or actions are the
result of the negligence or willful misconduct of the Borough, its
successors, assigns, elected officials, officers, employees, servants,
contractors, designees or invitees. This indemnification shall specifically
include, but not be limited to, any and all costs, reasonable attorneys'
fees, court costs and any other expenses that may be incurred by the
Borough in connection with any and all claims, demands, suits, actions
at law or equity or otherwise and/or arbitration proceedings which
may arise in connection with applicant's activities pursuant
to the rights granted in this agreement. This indemnification shall
also specifically include that the Borough retains the right to choose
its own defense counsel in regard to any action at law or equity pursuant
to this section.
5.
Reliable 24/7 emergency notification contact information will be
provided by the applicant to the Borough and incorporated into the
agreement.
6.
Additional Agreement Terms: Additional terms, such as for termination,
assignment and sublicensing rights, shall be as negotiated between
the applicant and Borough.
7.
Nondiscriminatory. Applications will be processed on a nondiscriminatory
basis.
[Added 2-9-2021 by Ord.
No. 2021-02]
a.
Permitted Use. The following uses within the public ROW shall be a permitted use, subject to the entering into of a municipal agreement between applicant and Borough as set forth in § 26-30.2.1c above, and administrative review and the issuance of a permit as set forth in this § 26-30.2.2. All such uses shall be in accordance with all other applicable provisions of this section, including without limitation, those set forth in § 26-30.2.5 below.
1.
Collocation of a small wireless facility.
2.
Collocation that qualifies as an eligible facilities request.
3.
Modification of a pole, tower or support structure or replacement of a pole, for collocation of a communications facility that qualifies as an eligible facilities request or involves a small wireless facility that does not exceed the maximum limitations set forth in § 26-30.2.8b1(a)(1) below.
4.
Construction of a new pole or a monopole tower (but no other type
of tower) to be used for collocation of a small wireless facility
that does not exceed the maximum height and other applicable design
standards set forth in this section.
5.
Construction of a communications facility, other than those set forth in subparagraphs § 26-30.2.2a1, a2, or a3, involving the installation of coaxial, fiber-optic or other cabling, that is installed underground (direct buried or in conduit) or aboveground between two or more poles or a pole and a tower and/or support structure, and related equipment and appurtenances.
6.
Ordinary maintenance, including any upgrade, repair, replacement,
modification or alteration of a communications facility, with each
upgrade, maintenance or repair being a separate instance subject to
Administrative Review.
7.
The Borough reserves and retains the right to subject any installation
or modification contemplated in this section as well as in this section
to discretionary review subject to the 60 and 90 day shot clock guidelines
of FCC-18-133A. This may include public hearings and zoning board
of adjustment approval. The shot clock guidelines will be adhered
to for discretionary reviews unless compelling and extraordinary circumstances
suggest otherwise.
b.
Permit Required. No person shall place any facility described in § 26-30.2.2 above in the public ROW without first filing an application for administrative review for same and obtaining a permit thereof, except as otherwise expressly provided in this section.
c.
Proprietary or Confidential Information in Application. The Borough
shall make accepted applications publicly available by reasonably
available means such as a request pursuant to the Open Public Records
Act ("OPRA"). Notwithstanding the foregoing, applicant may designate
portions of its application materials that it reasonably believes
contain proprietary or confidential information as "proprietary" or
"confidential" by clearly marking each portion of such materials accordingly,
and the Borough shall treat the information as proprietary and confidential,
subject to applicable State and local "freedom of information" or
"sunshine" Laws and the Borough's determination that the applicant's
request for confidential or proprietary treatment of an application
material is reasonable. Confidential and proprietary information shall
not include any information which is by law, regulation, ordinance,
OPRA procedure and regulations or this section, open and available
for public inspection, including proposed communications facilities'
site locations.
d.
Administrative Review Application Requirements. The application shall
be made by the applicable provider or its duly authorized representative
and shall contain the following:
1.
The applicant's name, address, telephone number, and e-mail
address, including emergency contact information for the applicant.
2.
The names, addresses, telephone numbers, and e-mail addresses of
all consultants, if any, acting on behalf of the applicant with respect
to the filing of the application.
3.
A general description of the proposed work and the purposes and intent
of the proposed facility or facilities. The scope and detail of such
description shall be appropriate to the nature and character of the
physical work to be performed, with special emphasis on those matters
likely to be affected or impacted by the physical work proposed.
4.
Detailed construction drawings regarding the proposed facility, as
required by the Uniform Construction Code of the State of New Jersey,
or as otherwise stated and required under applicable Borough ordinances.
5.
Demonstration of compliance with RF health and safety measures, as established by the TCA and FCC, via an RF Health and Safety Report. Applicant may utilize the RF Safety Reports provided in connection with the municipal agreement, as described in § 26-30.2.1d4, for its applications for administrative review and permit issuance.
6.
Applicant shall demonstrate compliance with the § 26-30.2.8, Design Standards, as they pertain to appearance, siting and height of the proposed communications facilities and their support poles, towers or other structures.
7.
To the extent the proposed facility involves collocation on a pole,
tower or support structure, a structural report performed by a qualified
engineer evidencing that the pole, tower or support structure will
structurally support the collocation (or that the pole, tower or support
structure will be modified to meet structural requirements) in accordance
with applicable codes.
e.
Applicant shall demonstrate compliance with applicable environmental,
historical and landmark laws, rules and regulations, including SHPO
and NEPA approval, as needed or applicable, including obtaining any
necessary permits and approvals from the appropriate local, state
or federal department agency or other governing body.
f.
Ordinary maintenance, repair and replacement. Ordinary maintenance and repairs may require administrative review and be subject to the provisions of § 26-30.2.1b and c of this section, including notification to the Borough designee of any proposed work, repairs, replacement and modification. This will include coordination with the Borough DPW and Police Department for necessary street closures and safety protocols, as well as the payment of any required fees required under § 26-30.2.1c above, or other municipal ordinances.
g.
Information Updates. Any material change to information contained
in an application shall be submitted in writing to the Borough within
30 days after the condition necessitating the change.
h.
Application Fees. Unless otherwise provided by applicable laws, all applications pursuant to this section shall be accompanied by the fees required under § 26-30.2.1c above.
[Added 2-9-2021 by Ord.
No. 2021-02]
a.
Review of Applications for Administrative Review. The Borough shall
review the application in light of its conformity with applicable
provisions of this section, and shall issue a permit on nondiscriminatory
terms and conditions, subject to the following requirements:
1.
The Borough must act consistent with the following shot clock dates:
(a)
Review of an application to collocate a small wireless facility
using an existing structure: 60 days.
(b)
Review of an application to collocate a facility other than
a small wireless facility using an existing structure: 90 days.
(c)
Review of an application to deploy a small wireless facility
using a new structure: 90 days.
(d)
Review of an application to deploy a facility other than a small
wireless facility using a new structure: 150 days.
2.
Tolling Period: Unless a written agreement between the applicant
and the Borough provides otherwise, the tolling period for an application
(if any) is as set forth in paragraphs (a) through (c) below.
(a)
For an initial application to deploy small wireless facilities,
if the Borough notifies the applicant on or before the 10th day after
submission that the application is materially incomplete, and clearly
and specifically identifies the missing documents or information and
the specific rule or regulation creating the obligation to submit
such documents or information, the shot clock date calculation shall
restart at zero on the date on which the applicant submits all the
documents and information identified by the Borough to render the
application complete.
(b)
For all other initial applications, the tolling period shall
be the number of days from:
(1)
The day after the date when the Borough notifies
the applicant in writing that the application is materially incomplete
and clearly and specifically identifies the missing documents or information
that the applicant must submit to render the application complete
and the specific rule or regulation creating this obligation; until
(2)
The date when the applicant submits all the documents
and information identified by the siting authority to render the application
complete;
(3)
But only if the notice pursuant to paragraph a2(b)(1)
of this section is effectuated on or before the 30th day after the
date when the application was submitted; or
(c)
For resubmitted applications following a notice of deficiency,
the tolling period shall be the number of days from:
(1)
The day after the date when the Borough notifies
the applicant in writing that the applicant's supplemental submission
was not sufficient to render the application complete and clearly
and specifically identifies the missing documents or information that
need to be submitted based on the Borough's original request
under paragraph a2(b)(1) or (2) of this section; until
(2)
The date when the applicant submits all the documents
and information identified by the Borough to render the application
complete;
(3)
But only if the notice pursuant to paragraph a2(c)(1)
of this section is effectuated on or before the 10th day after the
date when the applicant makes a supplemental submission in response
to the Borough's request under paragraph a2(b)(1) or (2) of this
section.
(i)
The Borough must advise the applicant in writing
of its final decision, and in the final decision document the basis
for a denial, including referencing specific code provisions and/or
regulations upon which the denial was based, including any federal
law, or local or state laws and regulations, provided said local and
state laws and regulations do not conflict with federal law. Denial
may include lack of conformity with the Borough codes, ordinances
and regulations, as well as local, state and federal environmental,
landmark and historical regulations. A decision to deny an application
shall be in writing and supported by clear evidence contained in a
written record, publicly released, and sent to the applicant. The
written decision, supported by such substantial evidence, shall constitute
final action by the Borough. The review period or "shot clock" shall
run until the written decision, supported by substantial evidence,
is released and sent to the applicant contemporaneously. The subsequent
review by the Borough shall be limited to the deficiencies cited in
the original denial and any material changes to the application made
to cure any identified deficiencies.
b.
Undergrounding Provisions. The Borough shall administer undergrounding
provisions in a non-discriminatory manner. It shall be the objective
of the Borough and all public ROW occupants to minimize disruption
or discontinuance of service of all kinds to consumers, through mutual
obligation to coordinate and timely complete such projects. An occupant,
including the applicant, as the case may be, shall comply with nondiscriminatory
Borough undergrounding requirements that (1) are in place and published
prior to the date of initial filing of the application, and (2) prohibit
electric, telecommunications and cable providers from installing above-ground
horizontal cables, poles, or equivalent vertical structures in the
public ROW; and the Borough may require the removal of overhead cable
and subsequently unused poles. In areas where existing aerial utilities
are being moved underground, wireless providers shall retain the right
to remain in place, under their existing authorization, by buying
out the ownership of the pole(s), subject to the concurrence of the
pole owner and consent of the Borough (which consent may not be unreasonably
withheld, conditioned or delayed) or, alternatively, the wireless
provider may reasonably replace the existing pole(s) or vertical structure
locations for antennas and accessory equipment, as a permitted use,
within 50 feet of the prior location, unless a minimally greater distance
is necessary for compelling public welfare. In neighborhoods or areas
with existing underground utilities that do not have small wireless
facilities deployed as a permitted use, a new entrant wireless provider
applying after utilities have been placed underground shall first
seek existing vertical structure locations, if technically feasible
for the wireless service to be deployed. To the degree such vertical
structures are not available, and upon receiving an approved permit,
the applicant shall be entitled to place poles or vertical structures
as necessary to provide the wireless service using vertical structures
commensurate with other vertical structures in the neighboring underground
utility area. In neighborhoods or areas with existing underground
utilities that do have small wireless facilities deployed as a permitted
use, a new entrant wireless provider applying after utilities have
been placed underground shall first seek existing vertical structure
locations, if technically feasible for the wireless service to be
deployed. To the degree such vertical structures are not available,
and upon receiving an approved permit, the applicant shall be entitled
to place poles or vertical structures as necessary to provide the
wireless service using vertical structures commensurate with other
vertical structures of wireless providers in the neighboring underground
utility area. In neighborhoods with underground utilities, whether
being converted from overhead utilities or initially underground,
microwireless devices, typically strand-mounted, shall be treated
like other small wireless facilities in the public ROW, requiring
permitted use status, and subject to non-recurring and recurring fees
and rates. However, in any event, no pole shall be erected within
100 feet of any existing utility pole.
c.
Effect of Permit.
1.
Authority Granted; No Property Right or Other Interest Created. A
permit from the Borough authorizes an applicant to undertake only
certain activities in accordance with this section, and does not create
a property right or grant Borough to the applicant to impinge upon
the rights of others who may already have an interest in the public
ROW.
2.
Duration. Any permit for construction issued under this section shall
be valid for a period of six months after issuance, provided that
the six-month period shall be extended for up to an additional six
months upon written request of the applicant (made prior to the end
of the initial six-month period if the failure to complete construction
is delayed as a result of circumstances beyond the reasonable control
of the applicant.
d.
Removal, Relocation or Modification of a Communications Facility
in the ROW.
1.
Notice. Within 90 days following written notice from the Borough,
a provider shall, at its own expense, protect, support, temporarily
or permanently disconnect, remove, relocate, change or alter the position
of any communications facility within the public ROW whenever the
Borough has determined that such removal, relocation, change or alteration,
is reasonably necessary for the construction, repair, maintenance,
or installation of any Borough improvement in or upon, or the operations
of the Borough in or upon, the public ROW, or pursuant to any redevelopment
plan made pursuant to the Municipal Land Use Law contained in N.J.S.A.
40:55D, or any council resolution that approves any redevelopment
plan for work that is performed by a private company other than the
Borough. The Borough shall apply the same standards to all utilities
in the public ROW.
2.
Emergency Removal or Relocation of Facilities. The Borough retains
the right and privilege to cut power to or move any communications
facility located within the public ROW of the Borough, as the Borough
may determine to be necessary, appropriate or useful in response to
any public welfare emergency, or safety emergency. If circumstances
permit, the Borough shall notify the provider and provide the provider
an opportunity to move its own facilities prior to cutting power to
or removing the communications facility and in all cases shall notify
the provider after cutting power to or removing the communications
facility as promptly as reasonably possible.
3.
Structural reconditioning, repair and replacement. From time to time,
the Borough may paint, recondition, or otherwise improve or repair
the Borough poles in a substantial way ("Reconditioning Work"). The
provider shall reasonably cooperate with the Borough to carry out
reconditioning work activities in a manner that minimizes interference
with the provider's approved use of the facility. Provider shall
paint or recondition their existing pole to authentically match the
municipal recondition.
(a)
Prior to commencing reconditioning work, the Borough will use
reasonable efforts to provide the provider with at least 60 days prior
written notice. Upon receiving that notice, it shall be the provider's
sole responsibility to provide adequate measures to cover, remove,
or otherwise protect the provider's communications facility from
the consequences of the reconditioning work, including but not limited
to paint and debris fallout. The Borough reserves the right to require
the provider to remove all of the provider's communications facility
from the Borough pole and surrounding premises during reconditioning
work, provided the requirement to remove same is contained in the
written notice required by this subsection. All cost associated with
the protection measures, including temporary removal, shall be the
sole responsibility of the provider. The Borough will provide the
provider with a date by which its equipment must be protected or removed.
The provider may request a modification of the Borough procedures
for carrying out reconditioning work in order to reduce the interference
with provider's operation of its communications facility. If
the Borough agrees to the modification, the provider shall be responsible
for all reasonable incremental cost related to the modification.
(b)
If the Borough poles need to be replaced ("replacement work"),
the Borough shall provide provider with at least 60 days written notice
to remove its communications facilities. The Borough shall also promptly
notify provider when the Borough poles have been replaced and provider
may re-install its equipment. During the replacement work, the provider
may maintain a temporary communications facility on the property,
or after approval by Borough, on any land owned or controlled by Borough,
in the vicinity of the property. If the property will not accommodate
the provider's temporary communications facility or if the parties
cannot agree on a temporary location, the provider, at its sole option,
shall have the right to suspend the applicable permit, until the replacement
pole is installed, upon 30 days' written notice to the Borough.
(c)
If the Borough poles need to be repaired due to storm or other
damage ("repair work"), the Borough shall notify the provider to remove
its communications facilities as soon as possible. In the event of
an emergency, the Borough shall contact the provider by telephone
at its emergency contact of record upon or prior to removing the provider's
equipment. Once the Borough poles have been replaced or repaired,
the Borough will promptly notify the provider that it can reinstall
its equipment. During Borough repair work, the provider may maintain
a temporary communications facility on the property, or after approval
by provider, on any land owned or controlled by the Borough in the
vicinity of the property. All cost associated with any removal or
protection of communications facilities shall be the sole responsibility
of the provider, except to the extent caused by third-parties or the
Borough.
e.
Attachment to Borough Poles in the Public ROW.
1.
Make-Ready. For any attachment to Borough poles in the public ROW,
the Borough shall provide a good faith estimate for any make-ready
work necessary to enable the Borough pole to support the proposed
facility, including replacement of the pole if necessary, within 60
days after receipt of a completed application requesting attachment
to the Borough pole, unless a longer period is required in order to
comply with New Jersey law, including, but not limited to, Local Public
Contracts Law ("LPCL") and the New Jersey Local Unit Pay to Play.
Make-ready work including any pole replacement shall be completed
within 120 days of written acceptance of the good faith estimate by
the provider. Borough will make all reasonable estimates to complete
the work within the stated timeframes. Such acceptance shall be signified
by payment via check or other commercially reasonable and customary
means specified by the Borough. If Borough does not indicate it is
willing to perform the make-ready work within the 60 days after receipt
of a completed application requesting attachment to the Borough pole,
applicant may perform the work itself consistent with Borough approval
under this section.
[Added 2-9-2021 by Ord.
No. 2021-02]
a.
Discretionary Review Required. All other uses not expressly set forth or referenced in § 26-30.2.2a above shall require compliance with applicable Borough ordinance, including, but not limited to, Chapter 26, Telecommunications Towers and Antennas, and the district zoning regulations and any other applicable laws and ordinances of the Borough.
[Added 2-9-2021 by Ord.
No. 2021-02]
a.
General Principles.
1.
The Borough shall have the power to establish reasonable and nondiscriminatory
limitations on the placement of new or additional facilities within
specific congested segments of the public ROW if there is insufficient
space to accommodate all of the requests of applicants or other persons
to occupy and use the public ROW. In making such decisions, the Borough
shall to the extent possible accommodate all existing users and potential
users (i.e. those who have submitted an application to deploy facilities
within the public ROW) of the public ROW, and shall be guided primarily
by considerations of the public interest, the width and physical condition
of the public ROW, the time of year with respect to essential utilities,
the protection of existing facilities in the public ROW and established
plans for public improvements and development projects which have
been determined to be in the public's interest.
2.
Fewest Possible New Poles/Use of Existing Poles: Applicant shall
use existing poles when possible for the placement of its small wireless
facilities and shall minimize the number of new proposed poles in
the right-of-way to the fewest possible to meet the coverage and capacity
requirements. No new pole shall be erected within 100 feet of an existing
pole.
3.
Leasing of excess space in ducts, conduits and on a pole is a matter
between interested parties (subject to any applicable pole Attachment
regulations and any other applicable statutory, regulatory or contractual
obligations); however, lessees or licensees of such physical facilities
must still comply with the terms of this section, unless otherwise
expressly exempted by the Borough.
4.
An occupant of the public ROW shall employ due care during the installation
and maintenance process, and comply with all safety and public ROW-protection
requirements of applicable Federal, State and local laws (and any
generally applicable Borough guidelines, standards and practices),
and any additional commonly accepted safety and public ROW-protection
standards, methods and devices (to the extent not inconsistent with
applicable laws). All facilities under the streets of the Borough
shall be kept and maintained in a safe and well-ordered condition,
and in good order and repair.
(a)
Any permittee occupying any portion of the public ROW shall
erect a barrier around the perimeter of any excavation and provide
any and all traffic-control devices, signs and lights appropriate
to the level of complexity of the activity in order to protect, warn
and guide the public (vehicular and pedestrian) through the work zone.
The manner and use of these devices shall be described within a traffic-control
plan in accordance with the Manual on Uniform Traffic Control Devices,
and existing procedures, including the Borough Work Site Evaluation
process by which the construction office refers proposed work to the
police department in order to develop safety measures to safeguard
pedestrian and vehicular traffic as well as property. In the event
of any conflict between the provisions of this subsection and the
Work Site Evaluation process, the Work Site Evaluation procedures
shall control.
(b)
Occupants of the public ROW with open excavations awaiting final
restoration shall maintain all devices until the Borough notifies
the occupant in writing that the Borough or the Borough's designated
contractor is assuming responsibility for traffic control.
(c)
Each occupant shall designate a safety officer. The safety officer
shall be responsible for safety-related issues affecting both the
public and the occupant's field employees and contractors for
all job sites within the public ROW.
5.
Location of Existing Facilities.
(a)
An occupant of the public ROW shall not place any fixtures or
equipment where the same will interfere with any existing facility,
and shall locate its lines and equipment in such a manner as not to
interfere unnecessarily with the usual traffic patterns (vehicular
or pedestrian) or with the rights or reasonable convenience of owners
of property that abuts any public ROW.
(b)
In the event that the Borough notifies the occupant in advance
that it is expressly interested in sharing the trenches or bores at
a specific location area where construction is occurring, then the
occupant shall allow the Borough to place its infrastructure in the
occupant's trenches and bores as requested by the Borough. In
these instances, the Borough will bear an incremental share of the
costs of trenching, boring and the placement of conduit and infrastructure.
(c)
Before beginning excavation in any public ROW, an occupant shall
contact the regional notification center for subsurface installations
(One-Number Locator Service) to determine possible conflicts.
6.
Abandonment of Facilities.
(a)
Any occupant of the public ROW, including any applicant, wireless
provider or wireless infrastructure provider, that intends to permanently
discontinue use of any facilities within the public ROW shall notify
the Borough in writing within 30 days prior to abandonment. Such notice
shall describe the facilities for which the use is to be discontinued,
and the date of discontinuance of use. Upon notification, at its discretion,
the Borough will choose from the following options within 14 days
or any other agreed upon option, and so notify the occupant of its
decision:
(1)
Abandon the facilities in place and the occupant
shall further convey full title and ownership of such abandoned facilities
to the Borough. The occupant is responsible for all obligations of
the facilities, or other associated liabilities until the conveyance
to the Borough is completed; or
(2)
The facilities shall be removed and the occupant
shall be liable for removing the facilities at its own cost. If an
occupant fails to remove facilities that the Borough requires it to
remove, after 90 days notice to the occupant, the Borough may perform
the work and shall be entitled to collect the cost from the occupant
its successors and/or assigns.
b.
Additional Requirements.
1.
General. All deployments of communications facilities in the public
ROW shall comply with the following:
(a)
Compliance with ADA and other applicable Federal, State and
local laws and standards.
(b)
Pedestrian and vehicular traffic and safety requirements established
by the Borough.
(c)
Existing public ROW occupancy or management ordinances, not
otherwise inconsistent with this section.
(1)
Additional Permits. In addition to obtaining a
permit for installation of a communications facility in the public
ROW, an applicant must obtain the following additional permits and
approvals, as well as provide notice where indicated:
(i)
Notification to Borough designee for all work contemplated in this section, pursuant to § 26-30.2.1.
(ii)
Construction permit (including building and electrical
subcodes), per statutory fees established by uniform construction
code regulations contained in N.J.A.C. 5:23.
(iii)
Zoning permit, as applicable, per this section.
(v)
Telecommunications Consultation and Review performed
by the Borough designee or other such official of the Borough or professional
contracted by the Borough, to include permit review, construction
oversight for code and zoning compliance and post-installation inspection
to ensure compliance with the technical specifications.
(vi)
Engineering Review by an outside consultant, as
needed.
(vii)
Discretionary Review: For small wireless facilities
applications not subject to Administrative Review pursuant to this
section.
(d)
Existing Utility Easements in the Public Right-of-Way.
(1)
Applicants will work with the Borough engineer
to coordinate and protect existing utilities in the public ROW.
(2)
Applicants will coordinate with the Borough engineer
all public safety considerations prior to and during installation
in the public ROW to ensure public safety response in the case of
gas line, water line or electric Borough disturbance.
(e)
All newly constructed poles shall be installed on the same side
of the street as currently existing poles. Under no circumstance shall
this ordinance permit the construction and/or installation of a pole
on both sides of the street.
[Added 2-9-2021 by Ord.
No. 2021-02]
Notwithstanding anything to the contrary in this section, the
Borough may request that applicant install a small wireless facility
on a new decorative pole, or replace an existing decorative pole with
a new decorative pole that is in keeping with the aesthetics of the
existing decorative pole or the surrounding streetscape only upon
satisfaction of the following additional requirements:
a.
Issuance of a permit under § 26-30.2.2a.
b.
The new decorative pole, small wireless facilities attachment and/or
the replacement decorative pole is in keeping with the aesthetics
of the decorative pole and surrounding streetscape in the judgement
of the Borough.
[Added 2-9-2021 by Ord.
No. 2021-02]
An applicant seeking to construct, modify or replace a network
of communications facilities may, at the applicant's discretion
and subject to the Borough's approval, batch application requirements
and file a consolidated application and receive multiple permits or
a single permit for multiple communications facilities. The Borough's
denial of any site or sites within a consolidated application shall
not affect other sites submitted in the same application. The Borough
shall grant a permit(s) for any and all sites in a consolidated application
that it does not otherwise deny, subject to the requirements of this
section.
[Added 2-9-2021 by Ord.
No. 2021-02]
All above-ground communications facilities in the public ROW
requiring administrative review only shall conform to the following
non-discriminatory design guidelines generally applicable to all facilities
in the public ROW:
a.
Siting and Design Requirements:
1.
Pole Siting Standards. New poles for use as support structures for
small wireless facilities shall conform to the following siting standards:
(a)
Height. No Proposed pole shall be taller than 40 feet or 110%
of the height of poles in the surrounding streetscape, whichever is
higher.
(b)
Location, Safety and Aesthetics. No proposed pole shall be erected
in the right-of-way unless it:
(1)
Is approved pursuant to the provisions of this
section;
(2)
Replaces an existing pole; or
(3)
Does not inhibit any existing sight triangles or
sight distances; and
(4)
Allows adequate room for the public to pass and
repass across, along and through the right-of-way; and
(5)
Is finished and/or painted and/or otherwise camouflaged,
in conformance with best available stealth technology methods, so
as to blend in compatibly with its background and so as to minimize
its visual impact on surrounding properties.
(6)
Is compliant with Chapter 13, Streets and Sidewalks, of the Revised General Ordinances as well as any applicable local and state laws and regulations pertaining to the installation of utility poles in the right-of-way, including promulgated by the Board of Public Utilities requiring approval of proposed locations prior to installation.
2.
Ground Level Cabinet Siting Standards. Ground level cabinets shall
conform to the following siting standards:
(a)
Ground level cabinets are prohibited in the public right-of-way
in residential zones and any future residential zones.
(b)
Ground level cabinets are permitted in non-residential zones
provided that such ground level cabinet.
(c)
Is less than 28 cubic feet in volume; and
(d)
Is finished and/or painted so as to blend in compatibly with
its background and so as to minimize its visual impact on surrounding
properties; and
(e)
Does not inhibit any existing sight triangles or sight distance;
and
(f)
Allows adequate room for the public to pass and repass across,
along and through the municipal right-of-way.
3.
Pole Mounted Antenna and Pole Mounted Cabinet Siting Standards.
4.
Pole mounted antennas are permitted on existing poles, provided that
each pole mounted antenna:
(a)
Does not exceed three cubic feet in volume; and
(b)
Is finished and/or painted and/or otherwise camouflaged, in
conformance with best available stealth technology methods, so as
to blend in compatibly with its background and so as to minimize its
visual impact on surrounding properties; and
(c)
Does not inhibit any sight triangles or sight distance; and
(d)
Allows adequate room for the public to pass and repass across,
along and through the public right-of-way.
(e)
Pole mounted cabinets are permitted on existing poles in all
residential zones and non-residential zones provided that each pole
mounted cabinet:
(1)
Does not exceed 16 cubic feet; and
(2)
Is finished and/or painted and/or otherwise camouflaged,
in conformance with best available stealth technology methods, so
as to blend in compatibly with its background and so as to minimize
its visual impact on surrounding properties; and
(3)
Does not inhibit any sight triangles or sight distance;
and
(4)
Allows adequate room for the public to pass and
repass across the public right-of-way.
b.
Maximum Height Requirements.
1.
Maximum Size of Permitted Use. Small wireless facilities, and new, modified or replacement poles, towers and support structures (subject to the further limitation for replacement of support structures described in § 26-30.1.2 above) to be used for collocation of small wireless facilities may be placed in the public right-of-way as a permitted use in accordance with § 26-30.2.2 subject to the following requirements.
(a)
Each new, modified or replacement pole, tower or support structure
installed in the public ROW shall not exceed the greater of:
(1)
Five feet above the tallest existing pole, tower
or support structure not exceeding 50 feet in the public ROW, in place
as of the effective date of this section, and located within 500 feet
of the new proposed pole, support structure; or 10 feet on utility
distribution poles where required by the electrical utility separation
requirements; or
(2)
Fifty feet above ground level.
(b)
Each modified or replacement pole, tower, or support structure
installed in the public ROW shall not exceed the greater of:
(1)
Five feet above the height of the structure being
modified or replaced in place as of the effective date of this section;
or 10 feet on utility distribution poles where required by the electrical
utility separation requirements; or
(2)
The height limit under § 26-30.2.8b1(a).
[Added 2-9-2021 by Ord.
No. 2021-02]
Any communications facilities in the public rights-of-way existing
at the time of the adoption of the provisions of this section, whether
or not a municipal agreement exists or is in force and effect with
regard to same, shall be required to comply with the provisions of
this section.
Any municipal agreements entered into between the Borough and
any provider regarding communications facilities in the public rights-of-way
shall be required to conform to the provisions and standards of this
section. To the extent the provisions of any existing municipal agreement
conflict with this section, said provisions shall be replaced and
superseded by the applicable terms of this section.
[Added 2-9-2021 by Ord.
No. 2021-02]
Prior to the start of any installation of poles, small wireless
facilities or other communications facilities that requires excavation,
applicant shall contact New Jersey One Call at 811 at least three
full business days prior to the commencement of work.
[Added 2-9-2021 by Ord.
No. 2021-02]
For all installations of communications facilities and small
wireless facilities that require the installation of above ground
and underground communications and power cabling and conduit, along
the public ROW as well as utility easements and private property,
the Borough's Department of Public Works or Construction Office
may request that the project developer publicly offer to coordinate
with providers who operate, or have applied for facilities in the
Borough through the Department of Public Works or other applicable
department or agency to ensure the public ROW and any planned utility
easements are adequate to accommodate the deployment of both aboveground
and underground communications facilities. Specifically, planned utility
easements should allow for an adequate number of huts, utility poles
and other structures, as well as belowground conduit, to adequately
serve current and anticipated communications facilities. Access to
easements should be provided to providers on a non-discriminatory
basis and at a reasonable cost, or pursuant to applicable laws.
[Added 2-9-2021 by Ord.
No. 2021-02]
Violation of any of the provisions of this section shall be
a simple citation punishable with a civil penalty of $500 for each
violation which continues more than 10 days after written notice of
such violation is provided to the applicant. Each day, after such
notice, that a violation occurs or is permitted to exist by the applicant
constitutes a separate offense.
[Added 2-9-2021 by Ord.
No. 2021-02]
This section is intended to govern the installation, placement, maintenance, modification, upgrade and repair of communications facilities, including small wireless facilities, in the public right-of-way. The placement of telecommunications equipment outside of the public right-of-way shall be governed by Chapter 26 Telecommunications Antennas and Towers, as well as by other applicable codes and ordinances of the Borough.
[Added 2-9-2021 by Ord.
No. 2021-02]
The Borough Council, or other Borough person, agency or department
with the authority to do so, may waive any provision or standard set
forth in this section where it is demonstrated that the strict enforcement
of said standard:
a.
Will prohibit or have the effect of prohibiting any telecommunications
service pursuant to 47 U.S.C. 253(a); or
b.
Will prohibit or have the effect of prohibiting personal wireless
service pursuant to 47 U.S.C. 332(c)(7)(B)(i)(II); or
c.
Will violate any requirement set forth in the FCC Order entitled
"Accelerating Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment," WT Docket No. 17-79; "Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Investment,"
WC Docket No. 17-84; or
d.
Will prohibit, or have the effect of prohibiting, the ability of
an entity to provide wireless service to any prospective customer
within the Borough.
[Added 2-9-2021 by Ord.
No. 2021-02]
This section shall take effect 20 days after its adoption by
the Borough Council.
