Borough of Fairview, NJ Chapter 27 Telecommunications Antennas and Towers

§ 27-1 INTENT AND GOALS.

[Ord. No. 05-5 § 1]

a. Intent. The intent of this chapter is to establish general guidelines for the placement and appearance of wireless telecommunications facilities in a manner that achieves the stated goals of this chapter.

b. Goals. 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 new towers in industrial areas;

3. Minimize the total number of towers and antennas 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 wireless telecommunications carriers to locate towers and antennas, to the extent possible, in areas where the adverse impact on the community is minimal;

6. Minimize adverse visual impacts associated with the proliferation and clustering of towers;

7. Encourage wireless telecommunications carriers to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscaping screening and innovative camouflaging techniques;

8. To the greatest extent feasible, ensure that towers and wireless telecommunications facilities are compatible with surrounding land uses;

9. Enhance the ability of the wireless telecommunications carriers to provide such services to the community quickly, effectively and efficiently;

10. Consider the public health and safety as it relates to wireless telecommunications facilities; and

11. To avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.

§ 27-2 DEFINITIONS.

[Ord. No. 05-5 § 3]

a. Any word or term not defined herein shall be as defined in Chapter 25 (Borough of Fairview Land Use Ordinance). Any word or term not defined herein or in Chapter 25, shall be as defined in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., or shall be utilized in standard usage for the context in which the word is used.

b. Word Usage. In interpreting this chapter, words in one tense shall include other tenses or derivative forms; words in the singular shall include the plural and in the plural, the singular; either gender shall include the other; the word "shall" is mandatory; the word "may" is permissive.

c. Definitions. As used in this chapter, the following words shall have the meanings as indicated:

ALTERNATIVE TOWER STRUCTURE

Shall mean and include but shall not be limited to water towers, 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.

ANTENNA

Shall mean any exterior apparatus designated for telephonic, radio or television communications through the sending and/or receiving of electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communications signals. Parabolic dish antennas used for satellite communications shall not be included within this definition.

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.

COLLOCATION

Shall mean when wireless telecommunications facilities for two or more wireless telecommunications carriers are placed together on the same tower, alternative tower structure or building.

FAA

Shall mean the Federal Aviation Administration.

FCC

Shall mean the Federal Communications Commission.

GOVERNING AUTHORITY

Shall mean the Mayor and Council of the Borough of Fairview or the Borough of Fairview.

HEIGHT

Shall mean when referring to a tower or antenna, the vertical measurement from the highest point in elevation of the tower or antenna to the average finished grade/elevation adjoining the foundation of the tower, building or structure.

MOUNT

Shall mean the surface or structure upon which antennas are mounted, including building mounted, tower mounted and structure mounted.

MUNICIPAL LAND USE LAW

Shall mean the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

PLANNING BOARD

Shall mean the Borough of Fairview Planning Board whose statutory authority is defined by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

PREEXISTING TOWERS AND ANTENNAS

Shall mean any tower or antenna on which a permit has been properly issued prior to the effective date of this chapter. 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 article as "preexisting antennas" and "preexisting towers".

PUBLIC OFFICER

Shall mean the Zoning Official of the Borough of Fairview.

TARGETED MARKET COVERAGE AREA

Shall mean the area that is targeted to be served by a proposed wireless telecommunications facility.

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.

TOWER LATTICE

Shall mean a type of tower that is self-supporting, generally constructed of vertical metal struts and cross braces forming a structure which often tapers from the bottom to the top of the tower and is securely anchored to a foundation.

TOWER RECONSTRUCTION

Shall mean demolition and rebuilding of a tower on the same lot where the center point of the newly constructed tower is located no greater than 10 feet from the center point of the demolished tower. For the purpose of this definition, the center point of a tower shall be the geographic midpoint of the tower and all support structure as depicted in plan view.

TOWER, GUY

Shall mean a type of tower that is supported or braced through the use of cables (guy wires) which are permanently anchored.

TOWER, MONOPOLE

Shall mean a type of tower that is constructed of a single self-supporting shaft of wood, steel or concrete and a platform (or racks) for panel antennas arrayed at the top.

WIRELESS TELECOMMUNICATIONS

Shall mean the transmission of information of the user's choosing, such as voice, data, text, sound and/or video, using wireless telecommunications networks, between or among points specified by the user(s), without change in the form or content of the information as sent and received.

WIRELESS TELECOMMUNICATIONS ANTENNA

Shall mean a type of antenna that is used specifically for the purpose of providing wireless telecommunications services.

WIRELESS TELECOMMUNICATIONS CARRIER

Shall mean any business establishment engaged in the offering of personal wireless telecommunication services. The term "carrier" or "provider" shall be synonymous with wireless telecommunications carrier.

WIRELESS TELECOMMUNICATIONS FACILITY

Shall mean any unstaffed or staffed facility designed for the transmission and/or reception of radio frequency (RF) signals for the purpose of providing personal wireless telecommunications services as defined in the Federal Telecommunications Act of 1996. These facilities include but are not limited to: buildings, cabinets, other structures and facilities, generating and switching stations, repeaters, antennas, transmitters, receivers, towers and all other buildings and structures linking the wireless network of RF signal devices to conventional wired and other communications systems.

WIRELESS TELECOMMUNICATIONS SERVICES

Shall mean the offering of personal wireless telecommunications, as regulated in the Federal Telecommunications Act of 1996, for a fee directly to the public, or to such classes of users as to be effectively available directly to the public. Wireless telecommunications services include those services such as cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging and similar services that currently exist or may be developed in the future.

§ 27-3 APPLICABILITY.

[Ord. No. 05-5 § 3]

a. New Towers and Antennas. All new towers, antennas and wireless telecommunications facilities in the Borough of Fairview, shall be subject to the regulations of this chapter, except as provided in paragraphs b through f, inclusive.

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. Amateur Radio; Receive-Only Antennas. This chapter shall not govern any tower or the installation of any antenna that is 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.

d. Preexisting Towers and Antennas. Preexisting towers and preexisting antennas, as defined herein, shall not be required to meet the requirements of this chapter other than provisions specifically relating to Federal requirements, building codes, safety standards and monitoring report requirements.

e. 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.

f. Satellite Dishes. This chapter shall not govern any satellite dish presently regulated under the Borough Code.

§ 27-4 GENERAL GUIDELINES AND PROVISIONS.

[Ord. No. 05-5 § 4]

a. Principal or Accessory Use or Structure. Antennas and towers shall be considered principal uses and structures regardless of whether or not a wireless telecommunications facility is the sole use of the lot. A different existing principal use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. All other structures and ancillary facilities shall be considered accessory uses and structures.

b. Lot Size and Setbacks. 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.

c. Measurement. For purposes of measurement, tower setbacks and separation distances shall be calculated and applied irrespective of municipal and County jurisdictional boundaries.

d. Not Essential Services. Wireless telecommunications facilities, 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.

e. Multiple Antenna/Tower Plans. The Borough of Fairview encourages the users of towers and antennas to submit a single application for approval of multiple towers and/or antennas sites. Applications for approval of multiple sites shall be given priority in the review process.

f. Availability of an Alternative Suitable Site/Structure Analysis. No wireless telecommunications facility not meeting all of the required minimum separation distance or conditional use standards set forth in this chapter shall be permitted unless the applicant affirmatively demonstrates that no other site, existing tower or structure or alternative technology that does not require the use of towers or structures is available that can accommodate the applicant's targeted market coverage are in full compliance with the separation distance or conditional use standard. Evidence submitted to demonstrate the absence of any other available option shall include a written report as specified in the submission requirements sections of this chapter.

§ 27-5 ZONES WHERE PERMITTED; PERMITTED AND CONDITIONAL USES.

[Ord. No. 05-5 § 5]

a. Wireless telecommunications facilities operated under the regulations of the FCC and/or the Federal Telecommunications Act of 1996 shall be permitted in certain zoning districts in accordance with the provisions set forth in this chapter, subject to site plan review and approval.

b. Wireless telecommunications facilities not expressly permitted are hereby prohibited.

c. Wireless Telecommunications Facilities as a Permitted Use.

1. A wireless telecommunications facility shall be considered a permitted use in the following zones:

(a) District I Industry Retail Uses.

2. A wireless telecommunications facility located on a property owned, leased or otherwise controlled by the Governing Authority shall be considered a permitted use, in accordance with the following provisions and exemptions:

(a) A lease authorizing such wireless telecommunications facility shall be approved by resolution of the Governing Authority. The decision to extend such leases to an applicant or carrier shall be vested solely with the Governing Authority.

(b) Site plan approval requirements of this chapter may be exempted; however, the Governing Authority may, as a condition of such lease, require site plan approval.

(c) The facility shall be exempt from all zoning/bulk standards except that towers and antennas shall not exceed maximum height restrictions established in this chapter for a permitted use. Performance and design standards shall be applicable.

d. Wireless Telecommunications Facilities as a Conditional Use. Certain types of wireless telecommunications facilities shall be permitted as a conditional use in certain zone specified as follows:

1. Permitted as a conditional use in the following zones:

(a) District B General Business.

(b) District B-1 Central Business.

(c) NB Neighborhood Business Zone.

2. Types of wireless telecommunications facilities permitted as a conditional use are limited to antenna arrays mounted on:

(a) Existing towers;

(b) Existing buildings;

(c) Existing alternative tower structures; or,

(d) A reconstructed tower.

§ 27-6 ZONING REGULATIONS FOR WIRELESS TELECOMMUNICATIONS FACILITIES AS A PERMITTED USE.

[Ord. No. 05-5 § 6]

a. Applicability. The requirements contained in this section shall govern all wireless telecommunications facilities that are specified as a permitted use in certain zones. All requirements contained in this section shall be considered bulk/zoning regulations.

b. Wireless telecommunications facilities installed on a new monopole tower shall comply with the following regulations:

1. Maximum Tower and Antenna Height. The maximum height of any proposed tower and antenna shall be demonstrated by the applicant to be the minimum height necessary for the proposed installation to satisfactorily operate, but in no event shall the height exceed the following standards for maximum height:

(a) Single carrier: 90 feet.

(b) Two carriers: 110 feet.

(c) Three or more carriers: 150 feet.

2. Collocation Provisions. All towers and footings shall be designed to permit future extensions to a maximum height of 150 feet.

3. Minimum Setbacks. The setback distances shall be measured in plan view as a straight line from the nearest part of the tower or antenna array.

(a) Front lot lines: 100 feet or 75% of height of tower, whichever is greater.

(b) Side and rear lot lines: 50 feet or 40% of height of tower, whichever is less.

(c) All other buildings and structures (except wireless telecommunications equipment shelters): 25 feet or 20% of height of tower, whichever is less.

4. Minimum Separation Distance from Preexisting Towers or Other Proposed Towers. The following minimum separation distances shall be measured in plan view by drawing a straight line between the bases of the towers.

(a) Lattice or guy tower: 5,000 linear feet.

(b) Monopole tower: 1,500 linear feet.

5. Minimum Separation Distance from Residential Zone District Boundaries. The following minimum separation distances shall be measured in plan view by drawing a straight line from the nearest part of the tower or antenna to the residential zone district boundary line as depicted on the Official Zoning Map.

(a) District R-8 Single-Family Residence: 800 feet or 800% of height of tower; whichever is greater.

(b) District R-B One and Two-Family Residences: 800 feet or 800% of tower, whichever is greater.

(c) All other residential zone districts not specified above: 600 feet or 600% of height of tower, whichever is greater.

c. Wireless telecommunications facilities mounted on an existing building, tower or structure or on a reconstructed tower shall comply with the following regulations:

1. Maximum Antenna and Tower Height. Antenna arrays may be mounted on existing towers, buildings, alternative tower structures or on a reconstructed tower; however, no antenna or tower shall extend above the following maximum height standards:

(a) Antennas mounted on an existing building or existing alternative tower structure shall not exceed by more than 20 feet, or 20% of the existing height of the building or structure, whichever is less, up to a total maximum height of 90 feet.

(b) Antennas mounted on an existing tower that is greater than 150 feet in height shall not exceed the height of the tower.

(c) Antennas mounted on an existing tower that is 150 feet or less in height shall not exceed the existing height of the tower. However, if collocation is proposed, then the maximum permissible height of the existing or reconstructed tower and antennas may be increased based on the number of carriers that will be collocated on the existing tower:

(1) Single carrier: 90 feet.

(2) Two carriers: 110 feet.

(3) Three or more carriers: 150 feet.

2. Tower Reconstruction Provisions. Tower reconstruction, as defined herein, shall be in accordance with all of the following:

(a) Demolition and reconstruction of a tower that does not meet the definition of tower reconstruction shall be regulated under all of the provisions applicable to a new tower.

(b) Reconstruction of an existing tower shall be the same tower type as the existing tower, unless a monopole is proposed.

(c) Reconstruction of an existing tower that is greater than 150 feet in height may be demolished and rebuilt to a height no greater than the height requirements applicable to a new monopole tower. The antenna height shall not exceed the height of the reconstructed tower.

(d) Reconstruction of an existing tower that is 150 feet or less in height may be demolished and rebuilt to a height no greater than the height requirements applicable to a new monopole tower. The antenna height shall not exceed the height of the reconstructed tower.

(e) Reconstruction of an existing tower shall be exempt from all separation and setback requirements applicable to the construction of a new monopole tower.

3. Minimum Separation Distance from Residential Zone District Boundaries. The following minimum separation distances shall be measured in plan view by drawing a straight line from the nearest part of the tower or antenna to the residential zone district boundary line as depicted on the Official Zoning Map:

(a) District R-A Single-Family Residence: 600 feet or 600% of height of antenna, whichever is greater.

(b) District R-B One and Two-Family Residences: 600 feet or 600% of height of antenna, whichever is greater.

(c) All other residential zone districts not specified above: 200 feet or 200% of height of antenna, whichever is greater.

§ 27-7 ZONING REGULATIONS FOR WIRELESS TELECOMMUNICATIONS FACILITIES AS A CONDITIONAL USE.

[Ord. No. 05-5 § 7]

a. Applicability. The requirements contained in this section shall govern all wireless telecommunications facilities that are specified as a conditional use in certain zoning districts. All requirements contained in this section shall be considered conditional use standards.

b. Minimum Structure and Antenna Height.

1. No antenna shall be installed on a structure that is less than 50 feet in height.

2. No antenna shall be installed at a height lower than 50 feet.

c. Maximum Antenna Height. No antenna shall extend above the following maximum height standards:

1. Antennas mounted on an existing building or existing alternative tower structure shall not exceed by more than 20 feet, or 20% of the existing height of the building or structure, whichever is less.

(a) Antennas mounted on an existing or reconstructed tower shall not exceed the height of the existing tower.

d. Tower Reconstruction Provisions. Tower reconstruction, as defined herein, shall be in accordance with all of the following:

1. Demolition and reconstruction of a tower that does not meet the definition of tower reconstruction shall not be permitted, conditionally or otherwise.

2. Reconstruction of an existing tower shall only be reconstructed as a monopole tower.

3. Reconstruction of an existing tower may be demolished and rebuilt to a height no greater than the demolished tower. The antenna height shall not exceed the height of the reconstructed tower.

4. Reconstruction of an existing tower shall be exempt from the separation requirements otherwise applicable as conditional use standards.

e. Minimum Separation Distance of Antenna from Residential Zone District Boundaries. The following minimum separation distances shall be measured in plan view by drawing a straight line from the nearest part of the proposed antenna to the residential zone district boundary line as depicted on the Official Zoning Map:

1. District R-A Single-Family Residence: 150 feet.

2. District R-B One and Two-Family Residences: 125 feet.

3. All other residential zone districts not specified above: 100 feet.

§ 27-8 PERFORMANCE AND DESIGN STANDARD FOR ALL WIRELESS TELECOMMUNICATIONS FACILITIES.

[Ord. No. 05-5 § 8]

a. Aesthetics.

1. 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. Color shall be selected to be consistent with the color scheme of surrounding buildings or structures.

2. 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.

3. 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.

4. The use of stealth designs and camouflage structures, materials and treatments (trees, steeples, clock towers, etc.) shall be utilized in locations where vegetative conditions or architectural conditions warrant such treatments.

b. Security Fencing. Towers shall be enclosed by security fencing not less than eight feet in height and shall be vertically slatted and equipped with an appropriate anti-climbing device. Barbed wire is specifically prohibited.

c. Landscaping. The following requirements shall govern the landscaping surrounding the towers for which a site plan is required:

1. 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 eight feet wide and 12 feet high outside the perimeter of the compound.

2. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived altogether.

3. Existing mature tree growth and natural landforms 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.

4. Buffer maintenance shall be the responsibility of the applicant.

d. Wiring. The maximum linear distance of an aboveground cable/wiring conduit running between an antenna mounting structure and the equipment structure shall be no greater than 25 feet; cable conduits longer than 25 feet shall be installed below grade. On building-mounted sites, no cable/wiring shall be permitted on the front or side facades of the building; wiring shall be installed within the interior of the building or on the rear facade only.

e. Lighting. Towers shall not be artificially lighted unless required by the FAA or other applicable authority. If lighting is required, the reviewing board may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views.

f. Signs. Other than typical "warning," "emergency" and equipment information signs, no signs shall be permitted. Emergency signs shall be on plates attached to tower or building and shall not exceed two square feet in area.

g. Parking. Minimal off-street parking shall be permitted as needed.

h. Access Roads. All access roads leading to the tower and antenna shall be paved with asphalt in accordance with site plan requirements. The access road shall include an area for sufficient parking and turnaround provision.

i. Connections to Wired Telephone Service. No antenna shall be located on any tower in order to provide direct landline telephone service; such service shall be provided via existing telephone lines if available to the site or by the underground extension of telephone lines to the site if necessary.

§ 27-9 BUILDINGS AND EQUIPMENT STORAGE.

[Ord. No. 05-5 § 9]

a. Bulk Standards. Equipment cabinet or structures shall comply with the following requirements which are deemed to be zoning/bulk standards:

1. The cabinet or structure shall not contain more than 100 square feet of gross floor area per carrier.

2. Ground level cabinets shall conform to principal building setback requirements of the applicable zone district.

3. The cabinet or structure shall not be more than 15 feet in height.

4. For wireless telecommunications facilities on buildings or structures which are less than 65 feet in height, the related unmanned equipment structure, if over 200 square feet of gross floor area or over 123 feet in height, shall not be located on the roof of the structure or building.

5. If the equipment cabinet or structure is located on the roof of a building, the area of the equipment structure and other equipment and structures shall not occupy more than 15% of the roof area.

b. Performance and Design Standards. Equipment cabinet or structures shall comply with the following requirements which are deemed to be performance and design standards:

1. In a front yard area or visible from a public street, the cabinet/structure shall be constructed as a building of an identical architectural design of surrounding buildings. An ornamental foundation planting shall be provided around the base of the building.

2. In a side or rear yard area not visible from a public street, the cabinet/structure shall be screened by an evergreen hedge with an ultimate height no less than 12 feet and a planted height of at least six feet.

3. If on a structure other than a tower, the equipment cabinet or structure 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 equipment structure as visually unobtrusive as possible.

4. One light may be provided at the entrance of the equipment structure, provided that the light is attached to the structure, is focused downward and is switched so that the light is turned on only when workers are at the site.

5. Collocation facilities shall provide a single integrated and attached equipment building to be shared by all carriers. The building may have multiple access doors, each dedicated to each carrier; however, a single common entryway door is encouraged.

6. The equipment storage buildings or cabinets shall be sufficiently insulated so that any noise generated from the equipment shall not exceed the noise levels permitted by Section 3-1, Noise Control of the Code of the Borough of Fairview.

7. Equipment storage buildings or cabinets shall comply with all applicable building codes.

§ 27-10 TECHNICAL CONSULTANTS.

[Ord. No. 05-5 § 10]

The Planning Board or Zoning Board may retain technical consultants, as it deems necessary, to provide assistance in the review of the site plan application and site location alternatives and analysis (if so applicable). The applicant (and/or carrier) shall bear the reasonable cost associated with such consultation, which cost shall be deposited in accordance with the Borough's escrow policies.

§ 27-11 SITE PLAN REQUIRED; SUBMISSION REQUIREMENTS; COMPLETENESS OF APPLICATION.

[Ord. No. 05-5 § 11]

a. Site Plan Required. Notwithstanding any other provisions excepting site plan approval, no wireless telecommunications facilities shall be permitted without site plan approval, unless it is expressly authorized in this chapter.

b. Supplementary Submission Checklist Requirements. In addition to a complete site plan submission, including all site plan detail requirements as set forth in Section 25-805, the following shall be required at the time of submission:

1. Visual impact analysis, including the following:

(a) Computer-generated digital photographs representing "before and after" construction must be included which depicts all aspects of the facility such as antennas, support structures, ancillary facilities and wiring.

(b) Reduction of visual impact statement. A statement that is certified by the applicant must be provided which states that every reasonable measure has been taken to assure that the proposed communications tower, antennas and/or accessory structure will be placed in a reasonably available location which will minimize the visual impact of the surrounding area (i.e., adjacent public rights-of-way) in accordance with minimum standards of applicable Federal and other regulations.

2. Radio frequency (RF) coverage analysis, including the following:

(a) Computer-generated coverage analysis accompanied by actual drive test measurements.

(b) Drawing or plan of the applicant's existing level of coverage in the Borough of Fairview and within a half-mile of the municipal boundary.

(c) Drawing or plans of the applicant's targeted market coverage area of the site plan application.

3. Inventory of Existing Sites. An inventory of all existing towers, antennas or sites approved for towers or antennas that are either within the jurisdiction of the governing authority or within 1/2 of a 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.

4. Availability of an Alternative Suitable Site/Structure Analysis, if Applicable. A written report that sufficiently demonstrates the absence of any other available option that would comply with minimum separation distance requirements or conditional use standards of this chapter. Evidence submitted as part of the report may consist of any of the following:

(a) No existing towers or structures are located within the geographic area required to meet the applicant's engineering requirements.

(b) Existing towers or structures are not of sufficient height to meet the applicant's engineering requirements.

(c) Existing towers or structures do not have sufficient structural strength to support the applicant's proposed antennas and related equipment.

(d) The applicant's 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 limit factors that render existing towers and structures unsuitable.

(g) The applicant shall have the affirmative obligation of proving that it has attempted to enter into a contract with the owners of an existing tower, structure or other more suitable site.

(1) This obligation shall include copies of all correspondence as to rates, costs 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 costs 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 a 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.

5. Franchises/Licenses. Wireless telecommunication carriers shall certify that all franchises and licenses required by law for the construction and/or operation of a wireless communications system in the Borough of Fairview have been obtained and shall file a copy of all required franchise documentation and licenses.

6. Graphic depiction and numeric specifications for all setback and separation distances as required by this chapter.

7. A statement including a full description of compliance with all applicable requirements of this chapter.

8. A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users.

9. 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.

10. A description of the feasible location(s) of future towers or antennas within the Borough of Fairview based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected.

11. A noise study determining the ambient sound level associated with proposed tower.

12. Documentation by a qualified engineer with a demonstrated expertise in structural engineering regarding the capacity of a proposed tower for the number and type of antennas.

13. Documentation by a qualified engineer with a demonstrated expertise in structural engineering that any proposed tower and antennas will have sufficient structural integrity to support the proposed antennas and the anticipated future collocated antennas and that the structural standards developed for antennas by the Electronic Industry Association (EIA) and/or the Telecommunications Industry Association (TIA) have been met.

14. Any other information deemed by the Governing Authority to be necessary to assess compliance with the MLUL and this chapter.

c. Completeness of Application.

1. Initial Submission Requirements. The applicant, at their option, may choose to make an initial submission for completeness review only, in accordance with the submission checklist requirements stated in this chapter. Said submission may be modified to include a total of four sets of required submission materials pursuant to this chapter. The submission will be distributed to the Board Engineer and Board Planner for completeness review. Upon the issuance of a certificate of completeness, the applicant shall make all required submissions at least 15 days prior to the scheduled public hearing.

2. Certification of Completeness. An application shall be complete for the purposes of commencing the applicable time period for action by the Board when so certified by the Board or its authorized designee. In the event that the Board or its designee does not certify the application to be complete within 45 days of the date of its submission, the application shall be deemed complete upon expiration of the forty-five-day period for the purposes of commencing the applicable time period unless:

(a) The application lacks information required in the applicable checklist; and

(b) The Board or its authorized designee has notified the applicant, in writing, of the deficiencies in the application within 45 days of submission of the application.

3. Submission Requirement Waivers. The applicant may request that one or more of the submission checklist requirements be waived, in which event the Board or its designee shall grant or deny the request within 45 days. The application shall include a list of all requested submission waive items and items that are not applicable to the application. Nothing herein shall be construed as diminishing the applicant's obligation to offer sufficient proof during the application process that he or she is entitled to approval of the application.

4. Correction of Erroneous Information. The Board may subsequently require correction of any information found to be in error, and the submission of additional information not specified in this chapter, or any revisions in the accompanying documents, as are reasonably necessary to make an informed decision as to whether the requirements necessary for approval of the application for development have been met. The application shall not be deemed incomplete for lack of any such additional information or any revision in the accompanying documents so required by the Board.

§ 27-12 MAINTENANCE AND MONITORING REQUIREMENTS; FEES.

[Ord. No. 05-5 § 12]

a. Compliance with Other Laws. 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. 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 FCC or any other governing bodies. Should any conflict arise between local zoning ordinances and rules or regulations promulgated by the FCC, the FCC rules and regulations shall govern.

b. Federal Requirements. 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.

c. Biannual Maintenance Reports. After the wireless telecommunications facility is in operation, the applicant shall submit a report within 90 days of commencing operation and at biannual intervals from the issuance of the building permit. The report shall be submitted to the Building Department and shall include:

1. A report prepared by a professional engineer certifying the structural integrity of the facility, together with all antennas mounted thereon and whether they remain in use, and that they meet all applicable minimum safety and FCC requirements.

2. Such report shall also certify whether or not antenna arrays have been modified and shall include a detailed listing of all antennas and equipment so certified.

3. A satisfactory insurance company inspection report shall be deemed to meet the requirements of this section.

d. All wireless telecommunications 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.

§ 27-13 ABANDONMENT OR DISCONTINUATION OF USE.

[Ord. No. 05-5 § 13]

a. At such time that a licensed carrier plans to abandon or discontinue operation of a wireless telecommunications facility, such carrier shall notify the Borough Clerk by certified United States Mail of the proposed date of abandonment or discontinuation of operations. Such notice shall be given no less than 30 days prior to abandonment or discontinuation of operations. In the event that a licensed carrier fails to give such notice, the wireless telecommunications facility shall be considered abandoned if it is not operated for a continuous period of 12 months.

b. The owner of any wireless telecommunications facility that is abandoned shall physically remove it within 90 days of receipt of notice from the Building Department notifying the owner of such abandonment. 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. "Physically remove" shall include, but not be limited to:

1. Removal of antennas, mount, equipment shelters and security barriers for the subject property;

2. Proper disposal of waste materials from the site in accordance with local, county and state solid waste disposal regulations;

3. Restoring the location of the facility to its original and/or natural condition, except that any landscaping and grading shall remain in the after-condition as deemed appropriate by the Borough Engineer.

c. If a carrier does not physically remove the antenna or tower in accordance with this section, the Mayor and Council may order the physical removal of such antenna or tower at the owner's expense and lien the property for the costs associated therewith, inclusive of professional fees.

§ 27-14 NONCONFORMING USES.

[Ord. No. 05-5 § 14]

a. No 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. Reconstruction of Damaged or Destroyed Nonconforming Towers or Antennas. Bona fide nonconforming preexisting towers or antennas that are damaged or destroyed may be rebuilt without having to obtain site plan and/or a conditional use permit approval in accordance with all of the following:

1. The type, height and location of the tower on the site shall be of the same type and intensity as the original facility approved.

2. Building permits to rebuild the facility shall comply with building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed.

3. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned.

§ 27-15 TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY.

§ 27-15.1 Short Title.

[Added 12-15-2020 by Ord. No. 20-27[1]]

This section is titled the "Telecommunications Facilities in the Public Right-of-Way," and amends all applicable provisions of the Borough of Fairview Revised General Ordinances, and any existing local laws, rules, orders, resolutions and ordinances relating to the subject matter of this section.

[1] Editor's Note: This ordinance also repealed former § 27-15, Rights-of-Way for 5G Telecommunications, added 4-21-2020 by Ord. No. 20-10.

§ 27-15.2 Purpose.

[Added 12-15-2020 by Ord. No. 20-27]

a. It is the intent of this section of Chapter 27 of the Revised General Ordinances 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 27, Telecommunications Antennas and Towers.

b. 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.

§ 27-15.3 Definitions.

[Added 12-15-2020 by Ord. No. 20-27]

As used in this section, the following terms shall have the meanings indicated:

ADMINISTRATIVE REVIEW

Ministerial review of an application by the Borough relating to the review and issuance of a permit, including review by the designee, a wireless consultant with knowledge beyond the expertise of Borough personnel, as well as the Construction Official, Zoning Officer, Director of Public Works, Engineer, 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 nondiscretionary 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.

ANTENNA

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.

APPLICABLE CODES

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.

APPLICANT

A person or entity who submits an application under this chapter.

APPLICATION

A written request submitted by an applicant to the Borough for a permit to locate or collocate, or to modify, a communications facility underground or on any existing support structure, pole, or tower; or to construct, modify or replace a new support structure, pole or tower or any other structure on which a communications facility will be collocated.

BOROUGH

The Borough of Fairview, 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 Fairview," "Fairview" or "the Borough."

BOROUGH POLE

A pole owned, managed or operated by or on behalf of the Borough.

COLLOCATE

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.

COMMUNICATIONS FACILITY

a. Collectively, the equipment at a fixed location or locations that enables communication between user equipment and a communications network, including:

1. Radio transceivers, antennas, coaxial, fiber-optic or other cabling, power supply (including backup battery), and comparable equipment, regardless of technological configuration; and

2. All other equipment associated with any of the foregoing.

b. A communications facility does not include the pole, tower or support structure to which the equipment is attached.

COMMUNICATIONS SERVICE PROVIDER

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).

CONTRACT FOR PROFESSIONAL SERVICES

A contract through which the Borough has entered into an arrangement with an individual, attorney consultant or firm for same to provide professional consulting services pursuant to this section, said contract being in conformance with New Jersey Public Contracts Law, pay-to-play laws and other applicable laws governing such contracts and agreements.

DECORATIVE POLE

A Borough pole that is specially designed and placed for aesthetic purposes.

DEPLOYABLE

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.

DESIGNEE

Hoplite Communications, LLC, appointed by the Borough and contracted for professional services to serve as the point-of-contact and primary consultant and specialist for the Borough for all matters concerning this section. Hoplite contact information: Office address: Hoplite Communications, LLC, 197 Route 18, Suite 3000, East Brunswick, NJ 08816; Phone: [phone]; Email: [e-mail].

DISCRETIONARY REVIEW

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.

ELIGIBLE FACILITIES REQUEST

An eligible facilities request as set forth in 47 CFR 1.6100(b)(3), as may be amended from time to time.

FCC

The Federal Communications Commission of the United States.

FEE

A one-time, nonrecurring charge, whether a fixed amount or cost-based amount based on time and expense.

HISTORIC PROPERTY

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 CFR Part 1, Appendix C) or established pursuant to state historic preservation law.

LAWS

Collectively, any and all federal, state, or local law, statute, common law, code, rule, regulation, order, or ordinance.

OCCUPANT

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.

ORDINARY MAINTENANCE, REPAIR AND REPLACEMENT

a. 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

b. 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 by the structural load analysis supplied by the applicant to the Borough, and by the volume limits in Subsection 27-15.11, Design Standards. Modifications beyond the foregoing must be requested in writing by the applicant and are subject to discretionary review by the Borough.

PERMIT

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.

PERSON

An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the Borough.

POLE

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.

PROVIDER

A communications service provider or a wireless provider.

PUBLIC RIGHT-OF-WAY, PUBLIC ROW or MUNICIPAL ROW

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.

RATE

A recurring charge.

REPLACE or REPLACEMENT

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 CFR 1.6100(b)(7).

SMALL WIRELESS FACILITY

a. A wireless facility that meets both of the following qualifications:

1. 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

2. All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume.

b. 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, cutoff switch, and vertical cable runs for connection of power and other services.

c. The following additional parameters apply to small wireless facilities: 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.

STATE

The State of New Jersey.

SUPPORT STRUCTURE

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.

TOWER

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.

UTILITY EASEMENT

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.

WIRELESS FACILITY

a. A communications facility installed and/or operated by a wireless provider. The term does not include:

1. The support structure, tower or pole on, under, or within which the equipment is located or collocated; or

2. 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.

b. A small wireless facility is one example of a wireless facility.

WIRELESS INFRASTRUCTURE PROVIDER

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.

WIRELESS PROVIDER

A wireless infrastructure provider or a wireless services provider.

WIRELESS SERVICES

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.

WIRELESS SERVICES PROVIDER

A person who provides wireless services.

§ 27-15.4 General Provisions of Agreement for Access to the Public ROW.

[Added 12-15-2020 by Ord. No. 20-27]

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 designee 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 the 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. [AT&T1] 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 is included as an attachment to this chapter.

2. The small cell permit application escrow, as described in Schedule A, 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 the 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.

(1) [AT&T2] Annual ROW occupancy rate shall be as specified in Schedule A 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.

(2) 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 Subsection 27-15.4c2(b)(1) and (2) combined shall not exceed $270 annually per small wireless facility location [AT&T3].

(3) All fees and rates will be applied in a nondiscriminatory manner to all communications service providers [AT&T4].

(4) 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, and shall be paid upon submission of the application as more particularly described in Subsection 27-15.6 below.

d. Other Terms.

1. Term. Unless otherwise agreed to in writing by the Borough and the 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 the 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. [AT&T5] 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, noncontributory 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 the 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 the applicant, or its subcontractors, agents, employees, officers, servants, designees, guests and invitees, activities pursuant to the rights granted in this agreement. The applicant shall notify the Borough Clerk within 15 days of receipt of any claim or demand of the 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. The applicant, its successors, assigns, contractors, subcontractors, 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 the 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 the 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.

§ 27-15.5 Permitted Communications Facility Uses/Administrative Review; Application.

[Added 12-15-2020 by Ord. No. 20-27]

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 Subsection 27-15.4c above, and administrative review and the issuance of a permit as set forth in this Subsection 27-15.5. All such uses shall be in accordance with all other applicable provisions of this section, including, without limitation, those set forth in Subsection 27-15.8 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 Subsection 27-15.6c1 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 Subsection 27-15.5a1, 2 or 3, 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 sixty- and ninety-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.

8. All other installations, modifications and replacements not subject to administrative review and that do not qualify as a permitted use are subject to discretionary review under Chapter 25, Land Use and Development Regulations, as described in Subsection 27-15.7 of this section.

b. Permit Required. No person shall place any facility described in Subsection 27-15.5a above in the public ROW without first filing an application 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, the 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 email address, including emergency contact information for the applicant.

2. The names, addresses, telephone numbers, and email 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. The applicant may utilize the RF safety reports provided in connection with the municipal agreement, as described in Subsection 27-15.4d4, for its applications for administrative review and permit issuance.

6. The applicant shall demonstrate compliance with the Subsection 27-15.11, 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. The 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 Subsection 27-15.4b 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 Subsection 27-15.4c above.

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 Subsection 27-15.4c above.

§ 27-15.6 Action on Administrative Review Applications.

[Added 12-15-2020 by Ord. No. 20-27]

a. Review of Applications for Administrative Review.

1. 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:

(a) The Borough must act consistent with the following shot clock dates [AT&T6]:

(1) Review of an application to collocate a small wireless facility using an existing structure: 60 days.

(2) Review of an application to collocate a facility other than a small wireless facility using an existing structure: 90 days.

(3) Review of an application to deploy a small wireless facility using a new structure: 90 days.

(4) Review of an application to deploy a facility other than a small wireless facility using a new structure: 150 days.

(b) 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 Subsection a1(b)(1) through (3) of this subsection.

(1) 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.

(2) For all other initial applications, the tolling period shall be the number of days from:

(i) 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

(ii) The date when the applicant submits all the documents and information identified by the siting authority to render the application complete;

(iii) But only if the notice pursuant to Subsection a1(b)(2)(i) of this subsection is effectuated on or before the 30th day after the date when the application was submitted; or

(3) For resubmitted applications following a notice of deficiency, the tolling period shall be the number of days from:

(i) 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 Subsection a1(b)(1) or (2) of this subsection; until

(ii) The date when the applicant submits all the documents and information identified by the Borough to render the application complete;

(iii) But only if the notice pursuant to Subsection a1(b)(3)(i) of this subsection 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 Subsection a1(b)(1) or (2) of this subsection.

2. 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 nondiscriminatory 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 aboveground 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 nonrecurring and recurring fees and rates.

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.

(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 [AT&T7] 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 the provider with at least 60 days' written notice to remove its communications facilities. The Borough shall also promptly notify the provider when the Borough poles have been replaced and the provider may reinstall its equipment. During the replacement work, the provider may maintain a temporary communications facility on the property, or, after approval by the Borough, on any land owned or controlled by the 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 the 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. The 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 the 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, the applicant may perform the work itself consistent with Borough approval under this section.

§ 27-15.7 Applications Requiring Discretionary Review and Approval.

[Added 12-15-2020 by Ord. No. 20-27]

a. Discretionary Review Required. All other uses not expressly set forth or referenced in Subsection 27-15.5a above shall require compliance with applicable Borough ordinance, including, but not limited to, Chapter 27, Telecommunications Antennas and Towers, and the district zoning regulations and any other applicable laws and ordinances of the Borough.

§ 27-15.8 Other Public ROW Installation Requirements.

[Added 12-15-2020 by Ord. No. 20-27]

a. General Principles.

1. Placement.

(a) 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.

(b) Fewest Possible New Poles/Use of Existing Poles. The 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.

2. 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.

3. 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.

4. 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. [AT&T8]

5. Abandonment of Facilities. 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:

(a) 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

(b) 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.

2. 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:

(a) Notification to Borough designee for all work contemplated in this section, pursuant to Subsection 27-15.4.

(b) Construction permit (including building and electrical subcodes), per statutory fees established by Uniform Construction Code regulations contained in N.J.A.C. 5:23.

(c) Zoning permit, as applicable, per this section and the applicable provisions of the Borough land use regulations.

(d) Street opening permit, if applicable, per Borough Code Chapter 15, Streets and Sidewalks.

(e) 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.

(f) Engineering review by an outside consultant, as needed.

(g) Discretionary Review: For small wireless facilities applications not subject to administrative review pursuant to this section.

c. [AT&T9] 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.

§ 27-15.9 Attachment to and Replacement of Decorative Poles.

[Added 12-15-2020 by Ord. No. 20-27]

Notwithstanding anything to the contrary in this section, the Borough may request that the 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 Subsection 27-15.5a above.

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.

§ 27-15.10 Batch Applications.

[Added 12-15-2020 by Ord. No. 20-27]

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. [AT&T10]

§ 27-15.11 Design Standards.

[Added 12-15-2020 by Ord. No. 20-27]

All aboveground communications facilities in the public ROW requiring administrative review only shall conform to the following nondiscriminatory 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 50 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 15, Streets and Sidewalks, of the Borough Code, 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 nonresidential zones, provided that such ground-level cabinet:

(1) Is less than 28 cubic feet in volume; and

(2) 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

(3) Does not inhibit any existing sight triangles or sight distance; and

(4) 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.

(a) Pole-mounted antennas are permitted on existing poles, provided that each pole-mounted antenna:

(1) Does not exceed three cubic feet in volume; 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, along and through the public right-of-way.

(b) Pole-mounted cabinets are permitted on existing poles in all residential zones and nonresidential 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 the definition of "replace or replacement" in Subsection 27-15.3 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 this Subsection 27-15.11, 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 this Subsection 27-15.11b1(a).

§ 27-15.12 Preexisting Sites and Municipal Agreements.

[Added 12-15-2020 by Ord. No. 20-27]

a. 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.

b. 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.

§ 27-15.13 New Jersey One Call.

[Added 12-15-2020 by Ord. No. 20-27]

Prior to the start of any installation of poles, small wireless facilities or other communications facilities that requires excavation, the applicant shall contact New Jersey One Call at 811 at least three full business days prior to the commencement of work.

§ 27-15.14 "Dig Once" Requirements.

[Added 12-15-2020 by Ord. No. 20-27]

For all installations of communications facilities and small wireless facilities that require the installation of aboveground 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 below-ground conduit, to adequately serve current and anticipated communications facilities. Access to easements should be provided to providers on a nondiscriminatory basis and at a reasonable cost, or pursuant to applicable laws.

§ 27-15.15 Violation of this Section.

[Added 12-15-2020 by Ord. No. 20-27]

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.

§ 27-15.16 Governance of Deployments Outside of the Public Right-of-Way.

[Added 12-15-2020 by Ord. No. 20-27]

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 27, Telecommunications Antennas and Towers, as well as by other applicable codes and ordinances of the Borough.

§ 27-15.17 Waiver.

[Added 12-15-2020 by Ord. No. 20-27]

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.

§ 27-15.18 Wireless Consultant Contact Information.

[Added 12-15-2020 by Ord. No. 20-27]

As specified in Subsection 27-15.4b herein, the Borough designee shall be the initial point of contact for the Borough for all matters concerning this section.

§ 27-15.19 When Effective.

[Added 12-15-2020 by Ord. No. 20-27]

This section shall take effect 20 days after its adoption by the Borough Council.