Editor's Note: The power to regulate excavation and construction in the public streets is contained in N.J.S.A. 40:67-1.
[Ord. #32, § 16; 1972 Code § 9-3]
As used in this section:
- Shall mean the party in interest for or by whom the excavation is made such as the water company for water pipes and the gas company for gas pipes.
[Ord. #11-1984, § 1]
Required; Fee. No person shall tear up, excavate, open, perform work of any other nature on any street, under the control of the Township without first having obtained and being in possession of a valid permit to do such work issued by the Township Clerk's office, and paying a fee of $5 per square yard to be opened and posting sufficient security.
Expiration. Any permit issued pursuant to this section shall become null and void unless work is commenced pursuant to the permit, within 10 days of issuance of the permit, unless the applicant has sought and received an extension from the Township Clerk's office for commencement of the work.
Recently Resurfaced or Repaved Streets. Unless otherwise required by an emergency, the Township Clerk's office shall not issue a permit for the opening or excavation of any street under the control of the Township where such street has been resurfaced or repaved within three years of the date of application for the permit. Any such emergency must be so certified by the Township Road Foreman.
Other Necessary Permits or Licenses. In addition to obtaining a permit from the Township as outlined above, the applicant must likewise where required by law, obtain all necessary permits or licenses from the public utilities whose lines, property or equipment may be affected by the opening, excavation or construction.
Notice of Commencement of Work. Subsequent to acquiring the necessary permits, the applicants must give 48 hours' notice to the Township Engineer's office before commencement of any street opening, excavation or construction.
[Ord. #11-1984, § 2]
All applicants for a street opening, excavation or construction shall prepare and file with the Township Clerk an application obtained from the Clerk's office. The application shall be accompanied by a plan or drawing describing the portion of the street to be opened or excavated indicating the dimensions of the opening, the purpose for the opening, and the expected duration of the opening or excavation.
[Ord. #31, § 4; 1972 Code § 9-5; New]
The Township Committee or the Township Engineer may order the measurement of any section and then demand by registered mail or direct service an increased deposit to be made by the applicant if the original permit is for a lesser area than that actually opened.
[Ord. #11-1984, § 3]
During the period of time that the street is under construction, excavated or opened, it shall remain, wherever safely reasonable, open to traffic and the applicant shall assist the Township in providing for continuous vehicular access. In the event detouring is necessary, it shall be coordinated with and approved by the Township Road Foreman.
While under construction or excavation, the applicant shall be responsible for providing barricades or other safety devices or warnings as reasonably required by the Township Engineer so as to inform motorists, bicyclists, and pedestrians of any construction or excavation. The applicant shall also promptly notify the Road Foreman of any excavation or construction site and provide the Road Foreman with the name, address, and phone number where the applicant or his representative may be reached.
The contractor shall be responsible for maintaining safe working conditions at the site of construction or excavation. The provisions of the "Construction Safety Code" as promulgated by the Commissioner of Labor and Industry under the authority of the Construction Safety Act, P.L. 1962, Ch. 45, shall be adhered to. Excavated materials shall be placed three feet back from the edge of the trench. Where conditions do not allow for the sloping of the trench sides, the contractor shall brace and support the trench in accordance with recognized practice.
[Ord. #11-1984, § 4]
The applicant shall be responsible for the immediate refilling of any excavation or construction site and the restoring of any street in accordance with the following specifications.
The following standards shall govern the excavation, refilling and restoration of any street:
Location of Existing Utilities. Prior to any excavation, the contractor shall bear the responsibility of locating and marking either by paint on the pavement or placement of stakes in the ground, the location of all water services, gas services, gas mains, water mains, sewer mains, telephone and electric raceways or conduits, and drains within the area to be excavated.
Pavement Cutting. Pavement shall be cut with pneumatic hammers or mechanical pavement cutters, saws or other methods approved by the Township Engineer.
Trench Excavation. The trench in which any utilities and/or appurtenances are to be constructed shall be excavated in open cut from the surface except where otherwise stated in writing and in all cases in such a manner and to such depth and width as will give suitable room for bracing the supporting, pumping and draining.
The maximum trench width at the top of the pipe shall be two feet plus the outside diameter of the pipe. The contractor may, where it will not interfere with the work or adjacent structures or property, and only after receiving approval from the Township Engineer, slope the sides of the excavation beyond the width specified above. The sides of the trench may only be sloped from a point starting two feet above the top of the pipe.
Length of Trench To Be Opened. No trench shall be excavated more than 50 linear feet in advance of pipe laying unless authorized by the Township Engineer.
The length of trench to be opened or the area of the surface to be disturbed or unrestored at any one time, shall be limited by the Township Engineer with regard to expeditious construction and to the convenience and comfort of the persons residing in the neighborhood or frequenting the streets in question. New trenching will not be permitted when earlier trenches need backfilling or labor is needed to restore the surface of the streets to a safe and proper condition.
Backfilling Trenches. The trench or other excavation shall be carefully backfilled with such excavated material. No rock or frozen earth shall be put in the trench until the backfill has reached at least two feet above the top of the utility. Backfill to a height of two feet above the top of the utility pipe shall be made with earth which shall be free from stones or rock fragments of a size larger than one inch in diameter. Below this level, the backfill shall be placed in layers not more than six inches thick and shall be compacted with approved flat-faced tampers. All backfill more than two feet above the top of pipes shall be compacted as follows:
By approved vibratory soil compactors, if the backfill material be predominantly sand or sand and gravel but contains more than 12% by weight of the material that will pass the 200 mesh sieve.
By approved vibratory compactors or puddling if the materials be predominantly sand or sand and gravel and contains not more than 12% by weight of material that will pass the 200 mesh sieve.
By approved flat-faced mechanical tampers if the backfill material be not predominantly sand or sand gravel.
Backfill around inlets, manholes and other subsurface structures shall be compacted by flat-faced mechanical tampers.
Care of Existing Structures. Care shall be taken not to move, without the consent of the Township Engineer, any sewers, drains, culverts, poles, water or gas pipes, etc., or structures near them that may be encountered during the construction. They shall be securely hung, braced or supported in place by the contractor at his own expense. All utility poles adjacent to the excavation shall be protected and braced during construction. Whenever it is necessary to interfere with the structures, the contractor shall maintain services at his own expense and repair all damages. He shall leave them in as good condition as he found them.
Dewatering. The contractor shall furnish sufficient pumping equipment and shall provide at his own expense satisfactory drainage whenever needed in the trench and other excavation during the progress of the work. All water pumped and bailed from the trench or other excavation shall be conveyed in a proper manner to a suitable point of discharge. The flow in all sewers, drains and watercourses encountered on the work, in gutters along side of or across the work, shall be entirely provided, both temporarily and permanently, as required, by the contractor and at his expense.
The trench restoration in the street will consist of a six inch gravel base course, four-inch bituminous stabilized base course, Mix I-2, and a FABC 1 Type Surface Course, Mix I-5, two-inch thick. Gravel base course and bituminous stabilized base course shall be applied immediately upon completion of the purpose for the opening.
The six-inch gravel base course shall be Soil Aggregate Type 2, Class A or B, conforming to the requirements specified respectively, thereof in Division 8, Section 8 of the Standard Specifications of the New Jersey Department of Transportation, as amended.
The materials for bituminous stabilized base course shall conform to Division 3, Section 2A, Article 2 of the Standard Specifications, as amended.
Final surface course shall not be placed for at least 30 days after initial completion and placement of the stabilized base course. The final surface course shall be completed no more than 60 days after initial compaction and placement of the stabilized base course.
The method of construction of the six-inch gravel base course, the four-inch bituminous stabilized base course, Mix I-2 and the two-inch FABC-1 Surface Course, Mix I-5, shall conform to the requirements of Division 3 of the Standard Specifications, as amended. The bituminous stabilized base course shall be constructed in two lifts as required by the specifications.
All work is to be inspected by the Township Engineer. The contractor shall notify the Township Engineer 48 hours in advance of performing any work under street restoration.
[Ord. #11-1984, § 5]
Every application shall be accompanied by a maintenance bond in the amount of $15.50 per square yard of excavation or construction. If no bond is provided a certified check in the same amount or a minimum of $75 shall be provided with the application.
A public utility or construction company, in lieu of giving a separate bond for each project, may annually once in January of each year post a bond in an amount sufficient to encompass the estimated work performed by the company during the ensuing calendar year. In the event that construction, excavation or road openings exceed the posted bond amount, additional bonds and/or cash security will be required.
The purpose of depositing the maintenance bond, surety bond or cash is to guarantee to the Township that any construction, excavation or road opening will be performed and completed in an acceptable fashion consistent with the provisions of this section. In the event that the Township Engineer determines that the excavation, construction or restoration and refilling has not been performed consistent with the requirements of this section, he shall be entitled, after reasonable notice to the applicant to correct such deficiencies, to take the maintenance bond, surety bond or cash posted by the applicant and utilize them to correct any deficiencies and have the area restored to its proper condition.
[Ord. #31, § 5; 1972 Code § 9-6; New]
The applicant shall fill in and resurface any excavated section and shall maintain the same in a condition similar to the surrounding surface area for a minimum period of one year. Upon certification of the Township Engineer, by inspection made thereof, to the Township Committee, the deposit shall be returned by motion of the Township Committee. If such inspection does not show the surface to have been substantially returned and maintained in its original condition and level, the deposit shall be forfeited by 10 days registered mail or direct service notice from the Township Engineer. The Township may use the same for the proper leveling and surfacing of the section, returning any balance of the deposit or charging the applicant for any excess required to place the section in proper condition. If, during the ten-day period, the applicant corrects the condition and so notifies the Township Engineer in writing then the notice shall be considered as a new application subject to reinspection and maintenance for one year from date of correction notice.
[Ord. #11-1984, § 6]
Every application for construction, excavation, or opening of a street under the control of the Township, shall be accompanied by a certificate of insurance demonstrating that the applicant possesses personal injury liability insurance in the amount of $500,000 and property damage liability insurance in the amount of $250,000. The insurance shall be maintained by the applicant during the period of construction or excavation.
The applicant shall also agree in writing to indemnify and hold harmless the Township, its agents, servants, and employees from any damage or liability sustained by any person or property arising out of the negligence of the applicant or its agents, servants and employees during the course of any construction, excavation, restoration or refilling of any road or street under the control of the Township. The agreement shall require the applicant in the event a claim is made against the Township, its agents, servants and employees arising out of the applicant's construction activities, to provide the Township with a legal defense and to pay any and all attorney's fees or costs incurred by the Township in connection with any claims, suit or litigation.
[Ord. #31, §§ 6 and 8; 1972 Code § 9-8; Ord. #11-1984, § 7; New]
No opening shall be made during the months of July and August. Work shall be performed between the hours of 7:00 a.m. and 7:00 p.m. In emergent situations, with a determination of an emergency being in the sole discretion of the Road Foreman, these requirements may be waived under those terms and conditions to be set by the Road Foreman.
When any work is done on a weekend by a contractor, the inspection shall be done by the Township Engineer and must be paid for by the applicant at those rates to be set by the Township.
Emergency Permit. In the event of an emergency, a permit may be issued by any member of the Township Committee as well as the Township Engineer and the deposit made on the next business day.
[Ord. #32, § 17; 1972 Code § 9-7.1]
A public utility shall not directly or indirectly charge to or claim indemnity from any other party, such as its customers, for the application, deposit or responsibility under this section but shall be solely responsible for the application, deposit and proper repair and maintenance of any excavated area.
[Ord. #31, §§ 9 and 10; 1972 Code § 9-9; New]
Any person injured by any official action under this section may file an appeal with the Township Committee within 10 days from the date of the rendering, service or mailing of the appealed ruling. Any notice may be by ordinary mail to the address set forth in the application unless otherwise ordered hereunder. An appeal shall specify the grounds for the same and the relief sought and all records of the Township Engineer shall be deposited with the Township Committee not less than 10 days nor more than 20 days from the date of filing the appeal. Ten days' notice shall be given by the Township to all parties in interest of the date of the hearing of the appeal.
[Ord. #31, § 11; 1972 Code § 9-10]
The vote of the majority of the Township Committee shall control its action under this section.
[Ord. #11-1984, § 8; New]
[Ord. #12-1986, § 1]
Whenever any existing sidewalk, curb or driveway, or any part or parts thereof, shall be located in the street or sidewalk area, and the same is in such condition that it has become dangerous to the public or is in such condition that it should be replaced, reconstructed or repaired, the Construction Official is authorized to give notice to the property owner to replace, repair or reconstruct the same within 30 days from the service of such notice.
Whenever any lot, tract or parcel of land is located in an area where public convenience and necessity require the construction of a curb or sidewalk, or both, the Construction Official is hereby authorized and empowered to give notice to the property owner to cause the same to be constructed within 30 days from the service of the notice.
Such areas are intended to mean those where the general public would be likely to pass or re-pass with reasonable frequency; those located where the lands abutting having improvements erected thereon, and lands located in a vicinity which has been developed by the construction of improvement on other lands. Nothing contained herein shall be construed, however, as requiring a property owner to construct a curb or sidewalk where the same are not required in the zone wherein the property is located or where neighboring or adjoining properties do not have curbs or sidewalks or both.
Whenever a notice is required by this section to be given by the Construction Official, such notice shall be in writing. Service of the notice shall be by personal service upon the owner if the owner resides within the Township, or by service at the owner's place of abode upon any member of the owner's family who has attained 15 years of age. Service upon an owner who cannot be served as above set forth, shall be deemed sufficient if mailed, by registered mail or by certified mail, with postage prepaid, to the owner by name and at the address as disclosed by the tax records according to the latest official records of the Tax Collector.
[Ord. #12-1986, § 2]
Whenever the owner or owners of real estate receiving a notice to replace, repair or reconstruct an existing sidewalk, curb or driveway in accordance with subsection 13-2.1, shall fail to comply and shall fail to make the necessary repairs within the thirty-day period, then, the Township may award a contract for the making of such improvement and shall notify the owner or owners of the real estate that the Township will make the improvement at the expense of the owners. The cost of such repair or improvement shall, thereafter, be assessed against the owner or owners in the manner prescribed by law.
[Ord. #12-1986, § 3]
Whenever directed to act by the Township Committee in specific instances, the Construction Official shall utilize the provisions of N.J.S.A. 40:65-1, et seq. by giving notice to the owner that unless the owner completes the work within 30 days after service of the notice, the Township will make the improvements at the sole expense of the owner.
The cost of the work shall be assessed against the lands of the owner in the manner prescribed by law. All applicable provisions of N.J.S.A. 40:65-1, et seq. shall be followed.
[Ord. #12-1986, § 4]
Whenever any existing sidewalk, curb or driveway is in need of replacement, repair or reconstruction, all such work shall be constructed to the strict line and grade as established by the Township Engineer and shall make use of the materials herein specified:
Concrete Curbs. Concrete curbs shall be 16 inches in depth, having a top width of six inches and a bottom width of eight inches. The top and face shall be troweled to produce a smooth finish. The face shall be troweled to a depth of nine inches. Mechanical vibration of the concrete will be permitted to produce a smooth curb face. Where vibrating produces the desired uniform, smooth surface, troweling will not be required.
Expansion joints shall be provided at twenty-foot intervals along the curb and shall consist of 1/2 inch pre-molded, compressible material.
Concrete Sidewalks. Concrete sidewalks shall be four inches in depth, having a width of four or five feet, which shall be determined by the width of existing sidewalks on any particular street. The sidewalk shall be finished with a wooden float to provide a uniform surface.
Grooves shall be formed at intervals, equal to the width of the sidewalk and expansion joints provided at twenty-foot intervals and shall consist of 1/2 inch, pre-molded, compressible material.
Sidewalks shall be located within the sidewalk area in accordance with the established practice on any particular street and shall slope upward from the established curb grade toward the property line at the rate of 1/4 inch per foot.
[Ord. #12-1986, § 5]
The Construction Official is hereby empowered to enforce this section and the several provisions thereof. The Construction Official is hereby further empowered to enforce the discretionary powers which are considered necessary in order to make the provisions hereof properly effective. In the event of an injustice, the possible abuse of discretion and to correct the possibility of error in judgment, any owner who receives a notice from the Construction Official has the right to appeal to the Township Committee by filing a notice of appeal with the Township Clerk within the thirty-day period heretofore mentioned. Upon receipt of any such notice of appeal, the Township Committee will hear the appeal at its next regular meeting, at which time the owner and any other persons appearing in the matter will be heard or afforded the opportunity to be heard. The Township Committee will consider the matter, reach a decision and notify the owner thereof.
[Ord. No. 009-2018 § 2]
For the purposes of this section, the following terms, phrases, words, and their derivatives shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Any term not defined in this section shall have the meaning ascribed to it in the New Jersey Municipal Land Use Law, 40:55D-1, et seq., unless the context clearly requires otherwise. In the event that a term is not defined by this subsection, said term shall have its common and/ordinary meaning.
- Means any firm, partnership, association, corporation, limited liability company, or any other legally recognized organization, licensed by the Federal Communications Commission to provide Personal Wireless Services or authorized by the New Jersey Board of Public utilities to provide telecommunications services in the State of New Jersey.
- Means a casing or encasement for wires or cables.
- Means the County of Cape May, State of New Jersey.
- FACILITY OR FACILITIES
- Means all structures, devices, and materials, including but not limited to: antennas, radios and radio cabinets, electrical wires and cables, fiber optic cables, communications and video cables and wires, poles, conduits, pads, backup power supply and other components of Personal Wireless Service Facilities, and appurtenances thereto, located in the public rights-of-way. Each pole mounting set up shall be a separate Facility for regulatory purposes, applications, and fees.
- GOVERNING BODY
- Means the Township Committee of the Township of Upper, County of Cape May, State of New Jersey.
- Means the Township of Upper, County of Cape May, State of New Jersey.
- Means the carrier to which a permit has been issued pursuant this section and Master License Agreement for Use of Public Rights-of-Way.
- PERSONAL WIRELESS SERVICE FACILITIES
- Means equipment at a fixed location that enables Personal Wireless Service between user equipment and a communications network, including but not limited to: (a) equipment associated with Personal Wireless Services such as private, broadcast and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul; and (b) Tower, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies and comparable equipment, regardless of technological configuration.
- PERSONAL WIRELESS SERVICES
- Means any technologies defined in 47 U.S.C. 332(c)(7) including commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, provided to personal mobile communication devices through wireless Facilities or any fixed mobile wireless services provided using personal wireless Facilities.
- PUBLIC RIGHT-OF-WAY
- Means the surface, the air space above the surface, and the area below the surface of any street, road, highway, lane, alley, boulevard, or drive, including the sidewalk, shoulder and area for utilities owned by the Township of Upper or within an easement to the public or other easement owned by the Township of Upper.
- STEALTH STRUCTURE
- Means a new structure for the mounting of Facilities, such as a light pole with integrated antenna, with aesthetics found to be reasonably acceptable to the Township Engineer.
- Means any street, avenue, boulevard, road, parkway, viaduct, drive or other way as defined in the Municipal Land Use Law, 40:55D-7.
- Means the Township of Upper, County of Cape May, State of New Jersey.
- TOWNSHIP ENGINEER
- Means, where applicable, the Administrative Officer as defined in N.J.S.A. 40:55D-3 and the duly appointed Township Engineer of the Township.
- UTILITY POLE
- A tall wooden pole that is used to support telephone wires, electrical wires, etc.
- ZONING OFFICER
- Means, where applicable, the Administrative Officer as defined in N.J.S.A. 40:55D-3 and the duly appointed Zoning Officer of the Township.
- ZONING PERMIT
- Means the document signed by the Zoning Officer pursuant to N.J.S.A. 40:55D-18 that is required as a condition precedent to the installation of an individual Facility and which acknowledges that the Facility complies with the provisions of this Ordinance, or approved deviation therefrom.
[Ord. No. 009-2018 § 3]
Purpose. The purpose and intent of this section is for the Township to exercise its lawful authority to grant consent to the limited use of the public rights-of-way and to allow the attachment of Facilities only to existing wooden utility poles located therein pursuant to N.J.S.A. 48-19, subject to certain conditions as stated herein, in order to allow the prompt deployment of Facilities while also effectively managing the public rights-of-way and protecting the aesthetic and safety interests of the public.
Facilities Subject to This Section. This section applies to all facilities, as herein defined, within the public rights-of-way, except as otherwise provided in any existing franchise, license or similar agreement. The deployment of facilities on private property and public property outside of the public rights-of-way shall not be controlled by this section or the Master License Agreement, but by the Township Zoning Ordinance, Site Plan Ordinance and the New Jersey Municipal Land Use Law. In no event shall this section apply to the Township or facilities owned or operated by the Township.
Master License Agreement Required. Every Carrier seeking to install facilities in the public rights-of-way, excluding those holding a franchise, license or similar agreement with the Township, shall first enter into the Master License Agreement substantially complying with the requirements of this section and apply for and obtain a Zoning Permit as provided herein. The execution of the Master License Agreement by the Carrier and the Township shall grant the Township's consent to the Carrier to utilize the public rights-of-way pursuant to N.J.S.A. 48-19 and N.J.S.A. 27:16-6 and shall control the installation, maintenance, and removal of the facilities.
Duration of Consent and Removal. The non-exclusive consent granted to the Carrier shall expire in 25 years unless earlier terminated. Carrier may cancel this Agreement upon 60 days' prior written notice to the Township. Upon expiration of such consent, or at such earlier date that the Carrier ceases to operate its facilities for a period of 90 consecutive days, the Carrier shall remove its facilities and restore the right-of-way at its sole cost and expense.
[Ord. No. 009-2018 § 4]
Permit Required. No Carrier, without first filing an application and obtaining a Zoning Permit from the Township Zoning Officer pursuant to N.J.S.A. 40:55D-18, shall construct any Facility within any public right-of-way.
Application Requirements. The application shall contain, at a minimum, the following:
The Carrier's name and address and telephone number of the contact person for such Carrier;
The applicant's name and address, if different than the Carrier, and telephone number of the contact person for such applicant;
The names, addresses, telephone number of the professional consultants, if any, advising the applicant with respect to the application;
A brief description of the proposed work;
A plan with specifications of the Facility showing the work proposed, including sufficient information regarding the components of the Facility, including their types and quantities;
Any request for a deviation from one or more provisions of this section, and
Such additional information as may be reasonably required by the Township Zoning Officer.
Application Fees. All applications for Zoning Permits pursuant to this section shall be accompanied by a fee of $200 for each independent facility as compensation to the Township for expenses incurred in processing the application as permitted by N.J.S.A. 54:30A-124.
[Ord. No. 009-2018 § 5]
Installation of Facilities. It shall be lawful for wireless communication carriers to install facilities in the public rights-of-way on existing or replacement wooden poles only, shall comply with all requirements of this section and the terms and condition of the Master License Agreement. All applicants shall obtain any and all approvals necessary from the owner and/or operator of the wooden utility poles to be used;
Other Approvals. All applicants shall obtain any and all approvals necessary from any other governmental agency in addition to the owner and/or operator of the wooden utility poles to be used;
Height. No antenna or attachment to an existing wooden utility pole shall exceed the height of that pole by more than six feet;
New Poles. No new poles shall be erected for the purpose of placing Facilities regulated herein. The setting of utility poles is regulated by the New Jersey Board of Public Utilities ("BPU), the Township authorizes only the utility company to set utility poles in the public rights-of-way in their normal course as they deem appropriate and/or necessary subject to BPU regulation.
Pole-Mounted Equipment. Equipment shall be pole mounted at a minimum of eight feet from the ground and/or shall conform to all Flood Prevention Ordinance requirements of the Township including but not limited to base flood plus elevations required, whichever is higher in height and shall be limited to one antenna and one cabinet or other mounted device at each site per carrier. A single antenna shall not exceed a height of four feet and two feet in width or two antennas each of a maximum dimension of a height of two feet and width of one foot. The cabinet or other mounted device may project beyond the side of the pole no more than 30 inches.
Ground-Mounted Equipment. No ground-mounted equipment is permitted on or around any pole;
Color and Conduit. All antennas, conduit and equipment shall be a color that blends with the wooden utility pole on which it is mounted. Any cables or wiring attached to the utility pole shall be covered with an appropriate conduit;
Construction Permits. Subsequent to the issuance of the Zoning Permit, the permittee shall obtain any necessary permits required pursuant to the current Uniform Construction Code adopted in New Jersey prior to installation;
Underground Work. All underground work shall follow standard road opening permit requirements; and
Co-locate. All carriers shall co-locate and cooperate with each other to minimize the impact and number of facilities on and in the public rights-of-way.
Nearby Facilities. No Facility shall be installed within 300 feet of an existing Facility.
Aesthetics. The Zoning Officer shall determine if the aesthetics of the proposed Facility are reasonably acceptable in accordance with the visual standards of the area. If the Zoning Officer and the Carrier cannot agree then the Carrier may appeal to the Township Committee to determine if the proposed facilities are reasonably acceptable in accordance with the visual standards in the area.
Replacement Poles. No existing pole shall be replaced with a new pole that is more than 35 feet above grade level unless the existing pole being replaced was taller than 35 feet in which case the replacement pole shall be no taller than the existing pole.
[Ord. No. 009-2018 § 6]
The Zoning Officer shall approve or reject the permit application within 30 days, unless the Zoning Officer determines that the permit application is incomplete and insufficient for him or her to either approve or reject, in which case the Zoning Officer shall inform the applicant in writing what information is missing. If the application does not conform to the requirements of this section and no request for a deviation is made with the application, the Zoning Officer shall reject such application in writing, stating the reasons therein. If the Zoning Officer is satisfied that the application conforms to the requirements of this section, the Zoning Officer shall issue a permit therefor within 60 days.
[Ord. No. 009-2018 § 7]
A Zoning Permit from the Zoning Officer shall confirm compliance with this section and shall authorize the permittee to apply for construction permits to undertake the work set forth in the plans filed with the permit application. The permit shall not grant authority to the permittee to impinge upon the rights of others who may also have an interest in the public rights-of-way.
[Ord. No. 009-2018 § 8]
Request for Deviations. A Carrier proposing to deviate from one or more of the provisions of this section shall do so in writing to the Township Engineer as part of the permit application. The request shall identify each provision of this section from which a deviation is requested and the reasons why a deviation should be granted.
Authority to Grant Deviations. The Township Engineer shall have no authority to grant a deviation from any conditions of subsection 13-3.4 "Conditions and Requirements". The Township Engineer shall decide for all other requests whether a deviation is authorized by this section and the Carrier requesting the deviation has demonstrated that:
One or more conditions not under the control of the Carrier (such as terrain features or an irregular public rights-of-way line or condition) create a special hardship that would make enforcement of the provision unreasonable, given the public purposes to be achieved by the provision; and
All other designs, methods, materials, locations or facilities that would conform to the provision from which a deviation is requested are impracticable in relation to the requested approach.
Additional Conditions for Granting of a Deviation. As a condition for authorizing a deviation, the Township Engineer may require the Carrier requesting the deviation to meet reasonable standards and conditions that may or may not be expressly contained within this section but which carry out its purposes.
Material Deviations. In the event the actual size, type, material, or location of any facilities installed in the public rights-of-way deviate in a materially significant way from that which was shown on the plans submitted with the Zoning Permit application, the permittee shall file new plans with the Township Engineer within 30 days of request or be subject to a stop work order, an order of removal, or a requirement to apply to the Governing Body for relief.
Appeal to Township Committee. If the Township Engineer determines that the deviation requested (or existing) is a major deviation and/or that practical hardship has not been properly demonstrated, or is a deviation from subsection 13-3.4, the Carrier may appeal this decision to the Township Committee.
Review Fees. Any reasonable professional fees incurred by the Township in its review of a request for a deviation or as a result of the installation of a facility in violation of this section, and for which no approval is granted, shall be paid to the Township within 30 days and prior to the issuance of the Zoning Permit as permitted by N.J.S.A. 54:30A-124. An escrow of $2,500 shall be submitted with the request for deviation to the Construction Office to cover such fees and be replenished as deemed appropriate by the Zoning Officer.
[Ord. No. 009-2018 § 9]
Required Coverage and Limits. Each Carrier constructing a Facility in the public rights-of-way shall secure and maintain commercial general liability insurance with limits $6,000,000 per occurrence for bodily injury (including death) and for damage or destruction to property insuring the Carrier as named insured and including the Township as an additional insured as their interest may appear under this agreement on the policies. Required limits may be provided through a combination of primary and excess/umbrella liability insurance.
Copies Required. The Carrier shall provide copy of certificates of insurance reflecting the requirements of this section to the Township within 10 days following zoning approval and prior to obtaining a construction permit pursuant to this section.
Self-Insurance. A Carrier may self-insure all or a portion of the insurance coverage and limit requirements required by paragraph a of this subsection. A Carrier that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insured under paragraph a or the requirements of paragraph b of this subsection. A Carrier that elects to self-insure shall provide to the Township evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit required under paragraph a of this subsection. Proof of such financial ability to self-insure shall be provided to the Township within 10 days following the effective date of the Master License Agreement and prior to obtaining a permit pursuant to this section.
Effect of Insurance and Self-Insurance on Carrier's Liability. The legal liability of the Carrier to the Township and any person for any of the matters that are the subject of the insurance policies or self-insurance required by this subsection shall not be limited by such insurance policies or self-insurance or by the recovery of any amounts thereunder, however neither the Township nor the carrier shall be liable to the other for consequential, incidental, exemplary or punitive damages on account of any activity pursuant to this section.
[Ord. No. 009-2018 § 10]
Prior to constructing a Facility in the public rights-of-way, and as a precondition to the issuance of a permit pursuant to this section, the Carrier shall execute the Master License Agreement, agreeing, among other things, to indemnify and hold harmless the Township against any claim of liability or loss from personal injury or property damage resulting from or arising out of the negligence or willful misconduct of the Carrier, its employees, contractors or agents, except to the extent such claims or damage may be due to or caused by the negligence or willful misconduct of the Township, or its employees, contractors or agents. The Township will provide the Carrier with prompt, written notice of any claim covered by this indemnification; provided that any failure of the Township to provide any such notice, or to provide it promptly, shall not relieve the Carrier from its indemnification obligation in respect of such claim, expect to the extent the Carrier can establish actual prejudice and direct damages as a result thereof. The Township shall cooperate with the Carrier in connection with the Carrier's defense of such claim. The Carrier shall defend the Township, at the Township's request, against any claim with counsel of the Township's choosing that is reasonably satisfactory to the Carrier.
[Ord. No. 009-2018 § 11]
Right to Revoke Permit. The Zoning Officer may revoke or suspend a permit issued pursuant to this section for one or more of the following reasons:
Materially false or incomplete statements in the permit application,
Non-compliance with one or more provisions this section for which a deviation has not been allowed,
The permittee's facilities within the public rights-of-way presents a direct or imminent threat to the public health, safety, or welfare,
Permittee's failure to construct the Facilities substantially in accordance with the permit and approved plans, or
Violation of the terms and conditions of the Master License Agreement.
Notice of Revocation or Suspension. The Zoning Officer shall send written notice of its intent to revoke or suspend a permit issued pursuant to this section stating the reason or reasons for the revocation or suspension and the alternatives available to permittee under this section.
Permittee Alternatives Upon Receipt of Notice of Revocation or Suspension. Upon receipt of a written notice of revocation or suspension from the Zoning Officer, the permittee shall have the following options:
Immediately provide the Township with evidence that no cause exists for the revocation or suspension;
Immediately correct, to the satisfaction of the Zoning Officer, the deficiencies stated in the written notice, providing written proof of such correction to the Zoning Officer within 10 business days after the receipt of the written notice of revocation, or
Within 10 days remove the facilities located within the public rights-of-way and restore the public rights-of-way to the satisfaction of the Zoning Officer providing written proof of such removal to the Zoning Officer within 10 business days after receipt of the written notice of revocation. The Zoning Officer may, in his or her discretion, extend the time periods provided in this subsection. To be effective extensions must be in writing.
[Ord. No. 009-2018 § 12]
Notification of Change. A Carrier shall notify the Township no less than 30 days following the transfer of ownership of any facility in the public rights-of-way or change in identity of the Carrier. The rights and obligations given to the Carrier pursuant to the Master License and Zoning Permit shall be binding on and benefit the new owner of the Carrier or the facility, its successors and assigns, who shall have all the obligations and privileges enjoyed by the former owner under the Master License Agreement, Zoning Permit, and all applicable laws, ordinances, rules and regulations, including this section, with respect to the work and facilities in the public rights-of-way.
[Ord. No. 009-2018 § 13]
Warning Signs, Protective Devices, and Flaggers. The Carrier is responsible for providing and installing warning signs, protective devices and flaggers, when necessary for protection of the public and the Carrier's workers when performing work on the public rights-of-way.
Interference with Traffic. All work shall be phased so that there is minimum interference with pedestrian and vehicular traffic.
Compliance. The Carrier shall take immediate action to correct any deficiencies in traffic protection requirements that are brought to the Carrier's attention by the Zoning Officer, Township Engineer, Local Fire District and the State Police.
[Ord. No. 009-2018 § 14]
Notice. Within 30 days following written notice from the Township, any Carrier with facilities in the public rights-of-way shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any facilities whenever the Township determines that (a) such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any Township improvement in or upon the public rights-of-way; or (b) because the equipment is interfering with or adversely affecting proper operation of the light or other poles; or (c) the widening of the public rights-of-way. In such instance, the Township shall cooperate with Carrier to find a replacement location for the facility that will provide similar radio frequency coverage to the facility removed or relocated.
Removal of Unauthorized Facilities. Within 30 days following written notice from the Zoning Officer to any Carrier that owns, controls, or maintains any unauthorized facility or related appurtenances within any public rights-of-way shall, at its own expense, remove all or any part of such facilities or appurtenances. A facility is unauthorized and subject to removal, but not limited to, in the following circumstances:
Upon expiration or termination of the permittee's license, unless otherwise permitted by applicable law,
If the Facility was constructed without the prior grant of a Zoning Permit,
If the Facility was constructed without prior issuance of a required construction permit,
If the Facility was constructed at a location not permitted by the permittee's permit, or
Upon Abandonment of the Facility. Abandonment will be presumed where a Facility has not been used for the purpose for which it was installed for a period of 90 consecutive days, or more, and where there have been no efforts to repair or renew the use during the ninety-day period. The Carrier owning, controlling or maintaining the facility shall have the burden of establishing to the Zoning Officer that the facility is still being used within 30 days of the notice. All notices described herein shall be in writing and sent by recognized national overnight courier (e.g., U.S. Postal, Federal Express or UPS) for which proof of delivery is supplied. Failure to respond to the Zoning Officer's request for information regarding the abandonment of the facility shall constitute a presumption of abandonment. Upon the Zoning Officer's determination and final written notification to the Carrier of such abandonment the Carrier shall have 60 days within which to:
Reactivate the use of the facility or transfer the facility to another entity which makes actual use of the facility promptly, or
Dismantle and remove the facility and notify the Zoning Officer in writing of the completion of such removal.
If the entity believes that the determination of abandonment by the Zoning Officer is incorrect it may file a written appeal with the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70a. If the entity fails to prevail on appeal, or fails to reactivate, or transfer to another active user or remove the service facility the Township shall have the right to have the facilities removed at the Carrier's sole expense. The Township shall be entitled to reimbursement for all costs and expenses associated with the removal of any facility thereafter.
[Ord. No. 009-2018 § 15]
Upon completion of all construction or maintenance of Facilities, the Carrier shall remove all debris and restore the right-of-way to a clean and safe condition in a timely manner and to the satisfaction of the Zoning Officer.
[Ord. No. 009-2018 § 16]
General. Facilities within public rights-of-way shall be maintained by or for the Carrier at the Carrier's sole expense. Carrier shall not damage the Public Right-of-Way and shall keep the Public Right-of-Way free of all debris. If any portion of the Public Right-of-Way suffers damage by reason of access by Carrier, then in that event, Carrier, at its sole cost and expense, shall immediately repair all such damage or replace the damaged portion of the Public Right-of-Way and restore the damaged portion of the property to its condition prior to the occurrence of such damage.
Emergency Maintenance Procedures. The non-compliance with normal procedures for securing a required permit shall be excused when a Carrier reasonably determines that an emergency exists.
If an emergency creates a hazard on the traveled portion of the public rights-of-way, the Carrier shall take immediate steps to provide all necessary protection for traffic on the roadway including the use of signs, lights, barricades or flaggers.
In an emergency, the Carrier shall, as soon as practical, notify the Zoning Officer or his or her duly authorized agent and the State Police of the emergency, informing him or her as to what steps have been taken for protection of the traveling public and what will be required to make the necessary repairs. On nights and weekends, the Carrier shall notify the State Police of an emergency if the Zoning Officer is unavailable. If the nature of the emergency is such as to interfere with the free movement of traffic, the State Police shall be notified immediately. To the extent that the Township has actual knowledge of the displacement or damage to any facility, it shall inform Carrier upon learning of the same.
[Ord. No. 009-2018 § 17]
Nothing in this section shall be construed as limiting any additional or further remedies that the Township may have for enforcement of this section or the right of a Carrier to appeal any decision to the state courts of New Jersey or the United States District Court for the District of New Jersey.
Editor's Note: Former Section 13-4, Sanitary Landfill, previously codified herein and containing portions of Ordinance No. 6-1978, was repealed in its entirety by Ordinance No. 4-1995.
Editor's Note: Former Section 13-6, Mandatory Recycling Program, previously codified herein and containing portions of Ordinance Nos. 15-1988 and 1-1990, was repealed in its entirety by Ordinance No. 4-1995.
Editor's Note: Former Section 13-8, Disposal of Grass, Leaves and Other Vegetation, previously codified herein and containing portions of Ordinance No. 7-1979, was repealed in its entirety by Ordinance No. 4-1995.
[Ord. #10-1983, § 1]
Pursuant to the authority contained in N.J.S.A. 40:48-2.26, et seq., it is hereby declared to be illegal for the owner or tenant of any lands lying within the Township to permit brush, hedges, trees, or other plant life to grow to a height greater than 2 1/2 feet within 10 feet of any street or roadway and within 25 feet of the intersection of any two or more streets or roadways.
[Ord. #10-1983, § 2]
The Zoning Officer is hereby designated as the enforcing officer to direct and supervise the cutting of any such brush, hedges, trees or other plant life in any case where the owner or tenant shall have refused or neglected to cut the same to a maximum height of 2 1/2 feet upon notice as provided herein.
[Ord. #10-1983, § 3]
A notice to cut such brush, hedges, trees or other plant life to a maximum height of 2 1/2 feet shall be served either personally or by certified mail upon the owner or tenant, such notice may be signed by the Zoning Officer or by the Township Clerk, and in either case, such notice shall give the owner or tenant a maximum period of 10 days to correct the violation.
[Ord. #10-1983, § 4]
In the event that the owner or tenant fails or refuses to correct the violation within the ten-day period, the required cutting shall be performed by the Township under the direction of the Superintendent of Public Works or the Road Foreman and in such case, a record of the time and expense involved in the cutting shall be filed with the Township Clerk and the Township Clerk shall then certify the costs thereof to the Township Committee, which shall examine the Township Clerk's certificate and, if found correct, shall cause the costs as shown thereon to be charged against the land, or in the event that such cost is excessive to cause the reasonable cost thereof to be charged against the land. The amount so charged shall forthwith become a lien upon such land and shall be added to and become and form part of the taxes next to be assessed and levied upon such land, the same to bear interest at the same rate as other taxes and shall be collected and enforced by the same officers and in the same manner as taxes, and such charge shall be in addition to any fine or penalties imposed under this section.
[Ord. #10-1983, § 5]
Nothing contained in the preceding subsection shall be construed as limiting or prohibiting the Township from bringing an action at law to recover the costs of such cutting when carried out by the Township whenever such action at law is authorized by State statute.
[Ord. #12-1992, § 1]
Unless the context clearly indicates otherwise, the following terms shall have the following meanings:
- CLEAN-UP AND REMOVAL COSTS
- Shall mean all costs associated with the discharge, incurred by the Township or any agency or other instrumentality thereof, or a duly incorporated volunteer fire, ambulance, first aid, emergency or rescue company or squad in the "(1) removal or attempted removal of hazardous substances, or (2) taking of reasonable measures to prevent or mitigate damage to the public health, safety or welfare, including, but not limited to, public and private property, shorelines, beaches, surface waters, water columns and bottom sediments, soils and other affected property, including wildlife and other natural resources."
- Shall mean any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands within this municipality or into waters outside the jurisdiction of this municipality when damage may result to the lands, waters or natural resources within the territorial limits of this municipality.
- EMERGENCY RESPONSE ACTION
- Shall mean those activities conducted by the Township or any agency or other instrumentality thereof or a duly incorporated volunteer, ambulance, first aid, emergency or rescue company or squad to clean-up, remove, prevent, contain, or mitigate a discharge that poses an immediate threat to the environment or to the public health, safety or welfare.
- HAZARDOUS SUBSTANCES
- Shall mean the "environmental hazardous substances" on the Environmental Hazardous Substance list adopted by the Department of Environmental Protection pursuant to section 4 of P.L. 1983, c. 315 (C. 34:5A-4); such elements and compounds, including petroleum products, which are defined as such by the Department of Environmental Protection, after public hearing, and which shall be consistent to the maximum extent possible with, and which shall include, the list of hazardous substances adopted by the Federal Environmental Protection Agency pursuant to section 311 of the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, as amended by the Clean Water Act of 1977, Pub.L. 95-217 (33 U.S.C. Sect. 1251, et seq.); the list of toxic pollutants designated by Congress or the EPA pursuant to section 307 of that act; and the list of hazardous substances adopted by the Federal Environmental Protection Agency pursuant to section 101 of the "Comprehensive Environmental Response, Compensation and Liability Act of 1980," Pub.L. 96-510 (42 U.S.C. Sect. 9601, et seq.
[Ord. #12-1992, § 1]
The Township or any agency or other instrumentality thereof, or a duly incorporated volunteer fire, ambulance, first aid, emergency or rescue company or squad is hereby authorized to file a claim with the Administrator of the New Jersey Spill Compensation Fund and/or file suit in the Superior Court of New Jersey or other court of competent jurisdiction to recover clean-up, removal and related costs incurred as a result of an emergency response action, including costs related to the prevention, containment or mitigation of a discharge.