[Added 6-19-2019 by Ord.
No. 1305]
As used in this article, the following terms shall have the
meanings indicated:
An apparatus designed for the purpose of emitting radiofrequency
(RF) radiation, to be operated or operating from a fixed location,
for the provision of personal wireless service and any commingled
information services.
Equipment, switches, wiring, cabling, power sources, shelters
or cabinets associated with an antenna, located at the same fixed
location as the antenna, and, when collocated on a structure, is mounted
or installed at the same time as such antenna.
The cost of processing an application for a right-of-way
permit, including, but not limited to, all professional fees such
as engineer and attorney costs to the Borough.
The entity seeking a permit to construct or install a facility
or facilities in the public rights-of-way, which shall include a permittee,
a competitive local exchange carrier, contractor or construction contractor,
agent or independent contractor for a carrier or other third party
operator. The applicant shall include the term "permittee" when required
permits have been issued pursuant to this article.
The Borough of Wildwood Crest, County of Cape May, State
of New Jersey.
The person appointed by the Borough to be the borough engineer,
or the board engineer.
A small box-like or rectangular structure used to facilitate
utility or personal wireless services from within the public rights-of-way.
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.
"Carrier" shall also mean and include any other third-party operator,
contractor or construction contractor who will be constructing or
installing the facilities or equipment as agent or independent contractor
for a carrier or other third-party operator.
Mounting or installing an antenna facility on a pre-existing
pole, and/or modifying a structure for the purpose of mounting or
installing an antenna facility on that pole.
A casing or encasement for wires or cables.
The County of Cape May, State of New Jersey.
A wireless pole, or pole owned by an incumbent local exchange
carrier, competitive local exchange carrier, electric distribution
company or other company that is in lawful existence within the public
rights-of-way.
All structures, devices, and materials, including but not
limited to: antennas, radios, 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.
The Board of Commissioners of the Borough of Wildwood Crest,
County of Cape May, State of New Jersey.
Any wireless cabinet or other equipment that is touching
the ground.
The Borough of Wildwood Crest, County of Cape May, State
of New Jersey.
The applicant or carrier to which a permit has been issued
pursuant this article and Master License Agreement for Use of Public
Rights-of-Way.
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,
antenna equipment, coaxial or fiber-optic cable, regular and backup
power supplies and comparable equipment, regardless of technological
configuration.
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.
A wooden utility pole that is used to support telephone wires,
electrical wires, etc.
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 Borough or within an easement to the public or other
easement owned by the Borough. This term shall also include county
rights-of-way.
A structure or facility finished and/or painted and/or otherwise
camouflaged, in conformance with the best available stealth technology
methods, so as to blend in and be compatible with its background so
as to minimize its visual impact on surrounding properties.
Any street, alley, avenue, boulevard, road, parkway, viaduct,
drive or other way as defined in the Municipal Land Use Law, N.J.S.A.
40:55D-7.
A pole, tower, base station, or other building, whether or
not it has an existing antenna facility, that is used or to be used
for the provision of personal wireless service (whether on its own
or comingled with other types of services).
An applicant or permittee that is not a licensed wireless
carrier or competitive local exchange carrier that will construct,
operate or maintain wireless facilities for the provision of service
of one or more wireless carriers.
The Zoning Board of Adjustment of the Borough of Wildwood
Crest, Cape May County, New Jersey.
The administrative officer as defined in N.J.S.A. 40:55D-3
and the zoning officer of the Borough or his/her authorized designee.
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 article, or approved deviation
therefrom.
A.
Purpose. The purpose and intent of this article is for the Borough
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,[1] 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.
[1]
Editor's Note: So in original.
B.
Facilities subject to this article. This article 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.
All facilities proposed to be placed within the public rights-of-way,
including all facilities proposed to be placed by utilities regulated
by the Board of Public Utilities and all other entities lawfully within
the public rights-of-way, shall be subject to the standards and procedures
set forth in this article and shall require a permit for the siting
of poles, antennas, and cabinets or other facilities in the public
rights-of-way. The deployment of facilities on private property and
public property outside of the public rights-of-way shall not be controlled
by this article or the Master License Agreement, but by other applicable
Borough ordinances and the New Jersey Municipal Land Use Law. In no
event shall this section apply to the Borough or facilities owned
or operated by the Borough.
C.
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 Borough, shall first
enter into the Master License Agreement substantially complying with
the requirements of this article and apply for and obtain a zoning
permit and construction permit as provided herein. The execution of
the Master License Agreement by the carrier and the Borough shall
grant the Borough's consent to the carrier to utilize the public rights-of-way
pursuant to N.J.S.A. 48-19[2] and N.J.S.A. 27:16-6 and subject to this article, shall
control the installation, maintenance, and removal of the facilities.
[2]
Editor's Note: So in original.
D.
Duration of consent and removal. The nonexclusive consent granted
to the carrier shall expire in 10 years unless earlier terminated.
Carrier may cancel the Master License Agreement upon 60 days' prior
written notice to the Borough.
A.
Application requirements. The application shall contain, at a minimum,
the following:
(1)
The carrier's name and address and telephone number of the contact
person for such carrier;
(2)
The applicant's name and address, if different than the carrier,
and telephone number of the contact person for such applicant;
(3)
The names, addresses, telephone numbers of the professional
consultants, if any, advising the applicant with respect to the application;
(4)
A plan with specifications for the facility showing the work proposed and location establishing that the facility will be located in the public rights-of-way including sufficient information regarding the components of the facility, their types, quantities, cross sections, elevations, and such information that is necessary as to determine weather the proposed facility meets the conditions and requirements set forth in § 85-2506, Conditions and requirements.
(5)
In the event the Zoning Officer or Board Engineer is unable
to determine whether such pole or facility is located within the public
rights-of-way, a survey signed and sealed by a New Jersey licensed
professional land surveyor demonstrating that any proposed pole and/or
proposed facility is located within the public rights-of-way may be
required.
(6)
Site photographs from the north, east, south and west of the
proposed facility;
(7)
Any request for a deviation from one or more provisions of this
article, identifying each provision of the article from which a deviation
is requested and the reason why a deviation should be granted; and
(8)
Such additional information as may be reasonably required by
the Zoning Officer or Board Engineer.
B.
Application fees. All applications for zoning permits pursuant to
this article shall be accompanied by a fee in the following amounts:
(1)
A non-recurring fee of $500 which will permit the installation
of up to five facilities.
(2)
An additional $100 fee will be required for any additional proposed
facilities above five.
(3)
An annually recurring fee of $270 per facility and or pole within
the public rights-of-way will be assessed.
(4)
A non-recurring fee of $1,000 for a new pole (i.e., not a collocation)
intended to support one or more facilities.
A.
Installation of facilities. It shall be lawful for any permittee
to install facilities in the public rights-of-way only on existing
wooden poles, provided that the permittee complies with all requirements
of this article and the terms and conditions of the Master License
Agreement.
B.
New poles; structures. No new poles or other structures 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 Borough 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.
C.
Distance. No proposed pole-mounted facility or other facility shall
be placed within 200 feet of an existing pole-mounted facility or
other facility.
D.
Volume of antenna. The volume of each antenna shall not exceed three
cubic feet.
E.
Volume of facility. All other facilities and associated wireless
equipment, including the wireless equipment associated with the antenna
and any pre-existing associated equipment on the pole shall not exceed
more than 28 cubic feet in volume.
F.
Site triangles. No pole or facility shall interfere with the public's
use of the public rights-of-way and shall not hinder any sight triangles
or otherwise cause unsafe driving conditions for vehicles or pedestrians
within the public rights-of-way.
G.
Minimum height of pole-mounted facility. All facilities shall be
pole mounted at a minimum of 10 feet from the ground and/or shall
conform to all Flood Hazard Area Ordinance requirements of the Borough
including but not limited to base flood plus elevations required,
and the current flood elevations established by the Federal Emergency
Management Agency (FEMA) whichever is higher.
H.
Maximum height. All facilities including their antennas shall:
I.
Quantity. Pole mounted equipment shall be limited to one antenna
and one cabinet or other mounted device at each site per carrier.
J.
Ground-mounted equipment. No ground-mounted equipment is permitted
on or around any pole.
K.
Camouflage. All cabinets, 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; all facilities must be finished and/or
painted and/or otherwise camouflaged, in conformance with the best
available stealth technology methods, so as to blend in compatibility
with its background and so as to minimize its visual impact on surrounding
properties.
L.
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.
M.
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.
N.
Underground work. All underground work shall follow standard road
opening permit requirements of the Borough.
O.
Cooperation. All carriers shall cooperate with each other to minimize
the impact and number of facilities on and in the public rights-of-way.
A.
The zoning officer or board engineer shall deem the application complete
or incomplete within 30 days of filing of the application. In the
event the application is materially incomplete, fails to conform to
the application requirements of this article, or the application is
otherwise insufficient to either approve or reject, the application
shall be deemed incomplete by providing a notice of deficiency to
the applicant informing the applicant of the specific nature of the
deficiency. The Zoning Officer or Board Engineer shall have 10 days
after re-filing of the application to deem it complete or incomplete.
B.
If the application conforms to the application requirements of this article, and no deviations from § 85-2506, Conditions and requirements, exists, the Zoning Officer shall issue a permit within 30 days of the date the application was deemed complete.
C.
In the event the application is found to contain deviations from § 85-2506, Conditions and requirements, the applicant may modify the proposed facility so that it conforms to this article and submit revised plans to the Zoning Officer for approval, or within 20 days of the written notice of denial request in writing to the Zoning Officer that the application be referred to the Zoning Board for review and decision pursuant to N.J.S.A. 40:55D-73.
D.
The applicant shall have the right to appeal any decision of the
Zoning Officer to the Zoning Board of Adjustment for review and decision
pursuant to N.J.S.A. 40:55D-72.
A.
Request for deviation. An applicant proposing to deviate from one or more of the provisions of § 85-2506, Conditions and requirements, shall do so in writing as part of the permit application. The request shall identify each provision of this section from which a deviation is requested and the reason why a deviation should be granted.
B.
Referral to and direct filing with Zoning Board of Adjustment. For collocation applications that contain deviations from § 85-2506, Conditions and requirements, that were referred to the Zoning Board, or were filed directly with the Zoning Board, the Zoning Board shall render a decision approving or denying the application within 90 days of the date of referral, or date the application was deemed complete, whichever is later. For all other non-collocation applications, the Zoning Board shall render a decision approving or denying the application within 120 days of the date of referral, or date the application was deemed complete, whichever is later.
C.
Standard of review. The Zoning Board may waive any conditions of § 85-2506, Conditions and requirements, where the applicant demonstrates that the strict enforcement of said standard:
(1)
Will prohibit or have the effect of prohibiting any interstate
or intrastate telecommunications service pursuant to 47 U.S.C. 253(a);
or
(2)
Will prohibit or have the effect of prohibiting personal wireless
service pursuant to 47 U.S.C. 332(c)(7)(B)(i)(II); or
(3)
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
(4)
Will prohibit, or have the effect of prohibiting, the ability
of an entity to provide utility service to any prospective customer
with the Borough.
(5)
That there is no reasonable alternative location for a pole
or facility.
D.
Review escrow fees. Any reasonable professional fees incurred by
the Borough in its review of a request for a deviation shall be paid
to the Borough at the time of filing the application, or within 30
days of a referral of the application to the Zoning Board, but in
any event, prior to the issuance of the zoning permit as permitted
by N.J.S.A. 54:30A-124. An escrow of $1,500 shall be submitted with
each application to cover such fees and be replenished as deemed appropriate
by the Zoning Officer or Board Engineer.
Issuance of a zoning permit shall confirm compliance with this
article, together with the Master License Agreement, 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.
A.
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 not less than $2,000,000 for bodily
injury including death on one or more persons in any one occurrence
and $2,000,000 for damage or destruction in any one occurrence insuring
the carrier as named insured and including the Borough as an additional
insured on the policies.
B.
Copies required. The carrier shall provide copy of certificates of
insurance reflecting the requirements of this section to the Borough
within 10 days following zoning approval and prior to obtaining a
construction permit.
C.
Self-insurance. A carrier may self-insure all or a portion of the insurance coverage and limit requirements required by Subsection A of this section. 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 Subsection A or the requirements of Subsection B of this section. A carrier that elects to self-insure shall provide to the Borough evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit required under Subsection A of this section. Proof of such financial ability to self-insure shall be provided to the Borough within 10 days following the effective date of the Master License Agreement and prior to obtaining a permit pursuant to this article.
D.
Effect of insurance and self-insurance on carrier's liability. The
legal liability of the carrier to the Borough 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 Borough nor the carrier shall be liable to the
other for consequential, incidental, exemplary or punitive damages
on account of any activity pursuant to this article.
E.
Indemnification. Prior to constructing a facility in the public rights-of-way,
and as a precondition to the issuance of a permit pursuant to this
article, the carrier shall execute the Master License Agreement, agreeing,
among other things, to indemnify and hold harmless the Borough 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 Borough, or its employees, contractors
or agents. The Borough will provide the carrier with prompt, written
notice of any claim covered by this indemnification; provided that
any failure of the Borough to provide any such notice, or to provide
it promptly, shall not relieve the carrier from its indemnification
obligation in respect of such claim. The Borough shall cooperate with
the carrier in connection with the carrier's defense of such claim.
The carrier shall defend the Borough, at the Borough's request, against
any claim with counsel of the Borough's choosing that is reasonably
satisfactory to the carrier.
A.
Right to revoke permit. The Zoning Officer may revoke or suspend
a permit issued pursuant to this article for one or more of the following
reasons:
(1)
Materially false or incomplete statements in the permit application;
(2)
Noncompliance with one or more provisions of this article for
which a deviation has not been allowed;
(3)
The carrier's facilities within the public rights-of-way presents
a direct or imminent threat to the public health, safety, or welfare;
(4)
Carrier's failure to construct the facilities substantially
in accordance with the permit and approved plans; or
(5)
Violation of the terms and conditions of the Master License
Agreement.
B.
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 carrier under this
subsection.
C.
Carrier alternatives upon receipt of notice of revocation or suspension.
Upon receipt of a written notice of revocation or suspension from
the Zoning Officer, the carrier shall have the following options:
(1)
Immediately provide the Borough with evidence that no cause
exists for the revocation or suspension;
(2)
Immediately correct, to the satisfaction of the Zoning Officer
or Borough Engineer, the deficiencies stated in the written notice,
providing written proof of such correction within 10 business days
after the receipt of the written notice of revocation; or
(3)
Within 10 days remove the facilities located within the public
rights-of-way and restore them to the satisfaction of the Zoning Officer
or Board Engineer providing written proof of such removal to within
10 business days after receipt of the written notice of revocation.
The Zoning Officer may, in his discretion, extend the time periods
provided in this subsection.
A carrier shall notify the Borough 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 Agreement 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 and zoning permit.
A.
Notice. Within 30 days following written notice from the Borough,
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 Borough determines
that a) such removal, relocation, change or alteration, is reasonably
necessary for the construction, repair, maintenance, or installation
of any Borough 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 Borough 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.
B.
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, said carrier 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:
(1)
Upon expiration or termination of the carrier's license, unless
otherwise permitted by applicable law;
(2)
If the facility was constructed without the prior grant of a
zoning permit;
(3)
If the facility was constructed without prior issuance of a
required construction permit;
(4)
If the facility was constructed at a location not permitted
by the carrier's permit.
C.
Upon abandonment of the facility.
(1)
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. 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:
(2)
If the carrier believes that the determination of abandonment
by the Zoning Officer is incorrect it may file an appeal with the
Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-72. If the
carrier fails to prevail on appeal, or fails to reactivate, or transfer
to another active user or remove the facility the Borough shall have
the right to have the facilities removed at the carrier's sole expense.
The Borough shall be entitled to reimbursement for all costs and expenses
associated with the removal of any facility thereafter.
Upon completion of all construction or maintenance of facilities,
the carrier shall remove all debris and restore the public rights-of-way
to a clean and safe condition in a timely manner and to the satisfaction
of the Zoning Officer.
A.
General maintenance. 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 rights-of-way and shall keep them
free of all debris. If any portion of the public rights-of-way suffers
damage by reason of access by carrier, then in that event the carrier,
at its sole cost and expense, shall immediately repair all such damage
or replace the damaged portion of the public rights-of-way and restore
the damaged portion of the property to its condition prior to the
occurrence of such damage.
B.
Emergency maintenance procedures. The noncompliance with normal procedures
for securing a required permit shall be excused when a carrier reasonably
determines that an emergency exists, in which event the carrier shall
comply with the following procedures:
(1)
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 and pedestrians
including the use of signs, lights, barricades or flaggers.
(2)
The carrier shall, as soon as practical, notify the Zoning Officer
or his or her duly authorized agent and the Borough Police Department
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 Borough Police Department. To the extent that the
Borough has actual knowledge of the displacement or damage to any
facility, it shall inform the carrier upon learning of the same.
A.
Nothing in this section shall be construed as limiting any additional
or further remedies that the Borough may have for enforcement of this
article.
B.
For violation of any provision of this article, the maximum penalty
shall, upon conviction of a violation, be a fine not exceeding $2,000
or imprisonment for a period not exceeding 90 days, or both.
