The following words and phrases shall, for the purpose of this
article, have the meanings herein indicated:
CO-LOCATION
The use of a common wireless telecommunications tower or
a common structure, by two or more wireless license holders or unlicensed
holders, nevertheless regulated by the Federal Communications Commission,
or by one wireless license holder for more than one type of communications
technology and/or the placement of a wireless telecommunications tower
on a structure owned or operated by a utility or other public entity.
PUBLIC RIGHT-OF-WAY
The surface of and the space above any public street, road,
lane, path, public way or place, sidewalk, alley, boulevard, parkway,
drive, and the like, held by the Borough or county or state as an
easement or in fee simple ownership, or any other area that is determined
by the Borough or county to be a right-of-way in which the Borough
may allow the installation of telecommunications facilities.
SMALL CELL EQUIPMENT and SMALL CELL FACILITY
Shall have a meaning consistent with Title 47 of the Code
of Federal Regulations and include:
A.
Wireless facilities and transmission media, including femtocells,
picocells and microcells.
B.
Outside distributed antenna systems ("ODAS").
C.
A personal wireless service facility as defined by the Federal
Telecommunications Act of 1996, as amended, that is attached, mounted
or installed on an existing pole or wireless pole in the public rights-of-way
and used to provide telecommunications (defined herein) services.
D.
A wireless service facility that meets both of the following
qualifications:
(1)
Each antenna is located inside an enclosure of no more than
three cubic feet in volume or, in the case of an antenna that has
exposed elements, the antenna and all of its exposed elements could
fit within an imaginary enclosure of no more than three cubic feet;
and
(2)
Primary equipment enclosures are not larger than 20 cubic feet
in volume. The following associated equipment may be located outside
of the primary equipment enclosure and, if so located, is not included
in the calculation of equipment volume: electric meter, concealment,
telecommunications demarcation box, ground-based enclosures, backup
power systems, grounding equipment, power transfer switch, and cutoff
switch.
[Amended 4-22-2020 by Ord. No. 2020-04]
TELECOMMUNICATIONS
The transmission by wire, radio, optical, or any electromagnetic
system, between or among points specified by the user of information
of the user's choosing, without change in the form or content of the
information as sent and received.
TELECOMMUNICATIONS FACILITY
Any structure or device used for the purpose of providing,
supporting, enabling or otherwise facilitating telecommunications,
including, but not limited to, small cell equipment and wireless poles,
as defined herein.
WIRELESS POLE
A column or post lawfully located in the Borough or county
or state right-of-way used solely to support small cell equipment
and/or provide personal wireless services as defined by federal law.
The purpose and intent of this article is to:
A. Establish a local policy concerning telecommunications facilities,
including small cell equipment and wireless poles in rights-of-way
of the Borough, county and state.
B. Conserve the limited physical capacity of the public rights-of-way
held in public trust by the Borough and the county.
C. Assure that any and all telecommunications carriers providing telecommunications
services in the Borough through telecommunications facilities, including
but not limited to small cell equipment and wireless poles, comply
with the laws, rules and regulations of the Borough.
D. Assure that the Borough can continue to fairly and responsibly protect
the public health, safety and welfare.
E. Enable the Borough to discharge its public trust consistent with
rapidly evolving federal and state regulatory policies, industry competition,
and technological development.
F. Allow for telecommunications facilities while preserving the historic
character of the Borough and allowing safe and efficient pedestrian,
bicycle and vehicular use of the rights-of-way.
Placement of telecommunications facilities shall be limited
to placements within the boundaries of Zoning Districts HB, NB, I,
LI, MS, BR-1, CCD-1 and CCD-2 as depicted on the Official Zoning Map
of the Borough of Red Bank.
The following shall apply to applications for all small cell
facilities and wireless poles:
A. Any telecommunications carrier who desires to construct, install,
operate, maintain, or otherwise locate small cell facilities within
any right of way within the Borough, for the purpose of providing
telecommunications services to persons and areas inside or outside
the Borough shall first obtain a license from the Borough in accordance
with this article.
B. For purposes of this article, the construction, installation, operation,
maintenance or location of telecommunications facilities includes
the co-location with any telecommunications facility.
C. A telecommunications carrier who is issued a license pursuant to
this article who, during the license term, wishes to add, supplement,
or modify the telecommunications facility for which the license was
granted shall be required to obtain a new license in accordance with
the procedures established by this article, except that no new license
shall be required during the license term if the addition, supplementation
or modification does not materially change the size, dimensions, technical
aspects, or appearance of the telecommunications facility, as reasonably
determined by the Borough Administrator. Nothing in this article shall
be construed as eliminating or otherwise altering duration of the
license term.
D. No application to construct a new wireless telecommunications service
facility shall be approved unless the applicant demonstrates to the
reasonable satisfaction of the Borough that no existing personal wireless
telecommunications service facility within a reasonable distance,
regardless of municipal boundaries, can accommodate the applicant's
needs. Evidence submitted to demonstrate that no existing personal
wireless telecommunications service facility can accommodate the applicant's
proposed facility shall consist of one or more of the following:
(1) No existing telecommunications facilities are located within the
geographic area required to meet the applicant's coverage demands.
(2) Existing telecommunications facilities are not of sufficient height
to meet the applicant's coverage demands and cannot be extended to
such height.
(3) Existing telecommunications facilities do not have sufficient structural
strength to support the applicant's proposed antenna and related equipment.
(4) Existing telecommunications facilities do not have adequate space
on which proposed equipment can be placed so it can function effectively
and reasonably.
(5) The applicant's proposed antenna would cause electromagnetic interference
with the antennas on the existing facility, or the antennas on the
existing facility would cause interference with the applicant-proposed
antenna.
(6) The applicant demonstrates that there are other compelling limiting
factors, including but not limited to economic factors, that render
existing facilities or structures unsuitable.
E. License term. The term of a license issued pursuant to this article
shall be 15 years.
[Amended 4-22-2020 by Ord. No. 2020-04]
F. License renewals shall be subject to the same standards and application
process as new applications.
[Amended 4-22-2020 by Ord. No. 2020-04; 10-12-2023 by Ord. No. NP2023-16]
A. Upon the Borough Manager's determination that an application for
a license is complete, including obtaining county approval, when necessary
in accordance with this article, the Borough Manager, after consultation
with the Borough Attorney and Borough Engineer, shall issue the determination.
B. Determination shall be issued within 60 days of the applicant's submission
of a complete application.
C. If the application is denied, the written determination shall include
the reasons for denial and supported by facts upon which the denial
is based.
Ownership or control of a license issued pursuant to this article
may not, directly or indirectly, be transferred, assigned or disposed
of by sale, lease, merger, consolidation or other act of the grantee,
by operation of law or otherwise, without the prior consent of the
Borough as expressed by resolution.
Each license grantee shall indemnify and hold the Borough and
its officers, employees, agents and representatives harmless from
and against any and all damages, losses and expenses, including reasonable
attorney's fees and costs of suit or defense, arising out of, resulting
from or alleged to arise out of or result from the negligent, careless
or wrongful acts, omissions, failures to act or misconduct of the
grantee or its affiliates, officers, employees, agents, contractors
or subcontractors in the construction, operation, maintenance, repair
or removal of its telecommunications facilities, and in providing
or offering telecommunications services over the facilities, whether
such acts or omissions are authorized, allowed or prohibited by this
article or by a grant agreement made or entered into pursuant to this
article.
The requirements of this article shall be in addition to, and
shall not be in lieu of any requirements imposed by, the Borough's
Land Use and Development Ordinance. If the Land Use and Development
Ordinance requires site plan approval, or the approval of any variances
from the Borough Planning and Zoning Board, the applicant shall be
required to secure any approvals and/or variances following the grant
of a license under this article. A Planning and Zoning Board application
for the construction, installation, or location for telecommunications
facilities shall not be deemed complete until a license under this
article is granted by the Borough.