[Adopted 11-26-2019 by Ord. No. 2019-71]
The following words and phrases shall, for the purpose of this
article, have the meanings herein indicated:
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.
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.
Shall have a meaning consistent with Title 47 of the Code
of Federal Regulations and include:
Wireless facilities and transmission media, including femtocells,
picocells and microcells.
Outside distributed antenna systems ("ODAS").
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.
A wireless service facility that meets both of the following
qualifications:
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
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]
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.
Any provider of telecommunications services.
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.
The offering of telecommunications to the public, regardless
of the telecommunications facilities used.
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.
A.
Any person who desires a license pursuant to this article shall file
an application with the Borough Administrator. The application shall
include the following information and requirements:
(1)
The identity of the license applicant, including all affiliates of
the applicant.
(2)
A description of the telecommunications services that are or will
be offered or provided.
(3)
A description of the telecommunications facility.
(4)
A description of the transmission medium that will be used by the
licensee to offer or provide telecommunications services.
(5)
An RFA report.
(6)
Identification of the type of pole being used. If it is a new pole,
the Borough standard pole must be used. The Borough standard pole
shall be selected by the Borough Administrator.
(7)
Location of all equipment which must be mounted at least 10 feet
above the ground level or below ground.
(8)
Preliminary engineering plans by a licensed professional engineer,
a property survey, specifications, and a network map of the telecommunications
facility to be located within the Borough, all in sufficient detail
to identify:
(a)
The location and route requested for applicant's proposed telecommunications
facility.
(b)
The location of all antennas, cells and nodes for the applicant's
proposed telecommunications facility.
(c)
The location of all overhead and underground public utility,
telecommunications, cable, water, sanitary sewer drainage and other
facilities in the public way along the proposed route.
(d)
The specific trees, structures, improvements, facilities and
obstructions, if any, that the applicant proposes to temporarily or
permanently remove, relocate or alter.
(9)
A preliminary construction schedule and completion date.
(10)
A traffic control plan.
(11)
Financial statements prepared in accordance with generally accepted
accounting principles demonstrating the applicant's financial ability
to construct, operate, maintain, relocate and remove the telecommunications
facilities.
(12)
Information to establish the applicant's technical qualifications,
experience and expertise regarding the telecommunications facilities
and telecommunications services described in the application.
(13)
Information to establish that the applicant has obtained all
other governmental approvals and permits to construct and operate
the telecommunications facilities and to offer or provide the telecommunications
services.
(14)
Information to establish that the telecommunications facility
meets the current standards and regulations of any agency of the federal
government with the authority to regulate telecommunications facilities.
(15)
Information to establish that the proposed telecommunications
facility conforms to the requirements of the International Building
Code, National Electrical Code and BPU Regulations, as applicable.
(16)
Proof of notice pursuant to the requirements set forth below
in notification for telecommunications facilities.
B.
Telecommunications facilities providers use various methodologies
and analysis tools, including geographically based computer software,
to determine the specific technical parameters of facilities, such
as expected coverage area, antenna configuration and topographic constraints
that affect signal paths. In certain instances, there may be a need
for expert review by a third party of the technical data submitted
by the provider. The Borough may require such a technical review to
be paid for by the applicant for a telecommunications service facility.
The selection of the third-party expert may be by mutual agreement
between the applicant and the Borough or at the discretion of the
Borough, with a provision for the applicant and interested parties
to comment on the proposed expert and review its qualifications. The
expert review is intended to be a site-specific review of technical
aspects of the telecommunications facilities and not a subjective
review of the site selection. The expert review of the technical submission
shall address the following:
A.
Upon the Borough Administrator's determination that an application
for a license is complete, including obtaining county approval, when
necessary in accordance with this article, the Borough Administrator,
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.
[Amended 4-22-2020 by Ord. No. 2020-04]
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.
A.
An application for a license under this article shall be accompanied
by a payment of a fee of $500.
B.
Pursuant to N.J.S.A. 54:30A-124, the Borough shall recover reasonable
professional fees for actual services incurred in the review of applications
under this article. Applicants shall make a deposit in an escrow for
professional fees in the amount of $2,000. If said escrow account
contains insufficient funds to enable the Borough to perform its review,
the Chief Financial Officer shall provide the applicant a notice of
insufficient balance. In order for review to continue, the applicant
shall, within 15 days, post a deposit to the account in an amount
to be mutually agreed upon.[1]
[1]
Editor's Note: Former Subsection C, which immediately followed,
regarding the posting of a bond, was repealed 4-22-2020 by Ord. No.
2020-04.
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.
A.
The Borough may revoke a license granted under this article for the
following reasons:
(1)
Construction or operation without a license.
(2)
Construction or operation at an unauthorized location.
(3)
Unauthorized substantial transfer of control of the grantee.
(4)
Unauthorized assignment of a license.
(5)
Unauthorized sale, assignment or transfer of grantee's assets or
a substantial interest therein.
(6)
Misrepresentation or lack of candor by or on behalf of a grantee
in any application to the Borough.
(7)
Abandonment of the telecommunications facility. A telecommunications
facility shall be deemed "abandoned" if it is disconnected from power
service; installed without proper approvals; or unused for greater
than six months. Abandoned telecommunications facilities shall be
removed by the owner with the area restored to its pretelecommunications
facility condition. Should the owner fail to remove the telecommunications
facility and restore the area to its pretelecommunications facility
condition, the Borough may do so at its option, and the costs thereof
shall be a charge against the owner.
(8)
Insolvency or bankruptcy of the grantee.
(9)
Material violation of the Borough General Ordinances.
B.
In the event that the Borough believes that grounds exist for revocation
of a license, it shall give the grantee written notice of the apparent
violation or noncompliance, providing a statement of the nature and
general facts of the violation or noncompliance, and providing the
grantee a reasonable period of time, not exceeding 30 days, to furnish
evidence:
C.
The Borough shall consider the apparent violation or noncompliance
in a public meeting, with respect to which the grantee shall be given
notice and a reasonable opportunity to be heard concerning the matter.
A.
Any telecommunications carrier who desires to change existing use,
construct, install, operate, maintain, or otherwise locate a telecommunications
facility in the Borough shall provide notice to properties certified
by the Borough Administrator to be within 200 feet of the proposed
telecommunications facility.
[Amended 4-22-2020 by Ord. No. 2020-04]
B.
Notice shall be given to a property owner by:
(1)
Serving a copy thereof on the property owner as shown on the current
certified tax list, or his or her agent in charge of the property;
or
(2)
Mailing a copy thereof by certified mail and regular mail to the
property owner at the address as shown on the said current certified
tax list. Service by mailing shall be deemed complete upon deposit
with the U.S. Postal Service. Notice pursuant to this article shall
state the identity of the telecommunications carrier; a description
of the telecommunications services that are or will be offered or
provided; a description of the location(s) of any telecommunications
facilities; and a description of the telecommunications facilities
to be installed. The notice shall also advise that a copy of the applicant's
application is on file with the Borough Administrator and may be reviewed
by the public. Notice must be provided to the Borough prior to commencement
of work.
C.
Such other and further information as may be required by the Borough
Administrator.
D.
In the case of an application that seeks to construct, install, operate,
maintain, or otherwise locate a telecommunications facility or equipment
on any property owned or controlled by the county, including, but
not limited to, a county right-of-way, the applicant shall also provide
notice to and obtain a permit from the county authorizing the placement
of such telecommunications facility on any such property or right-of-way.
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.
