[HISTORY: Adopted by the Council of the Borough of West Chester 6-16-2020 by Ord. No. 05-2020. Amendments noted where applicable.]
A.
The purpose of this chapter is to establish procedures and standards,
consistent with all applicable federal and state, laws, for the consideration,
permitting, siting, construction, installation, collocation, modification,
operation, regulation and removal of small wireless facilities ("SWF")
in the public right-of-way of streets and roads.
B.
The intent of this section is to:
(1)
Establish basic criteria for applications to install and/or collocate
SWF in the public right-of-way;
(2)
Ensure that SWF are appropriately designed, constructed, modified,
maintained, and removed when no longer in use in conformance with
all applicable health and safety regulations;
(3)
Preserve the character of the Borough by minimizing the potentially
adverse visual impact of SWF through careful design, siting, landscaping
and camouflaging techniques to blend these facilities into their environment
to the maximum extent practicable;
(4)
Establish an application process and structure for payment of fees
and charges to be uniformly applied to all applicants, operators and
owners of SWF for such facilities;
(5)
Comply with, and not conflict with or preempt, all applicable state
and federal laws, as may be amended or superseded, and all FCC rules
and regulations to interpret and implement applicable federal statutes.
A.
Subject to the provisions of this chapter and granting of the required
permits, an applicant may locate and/or collocate a SWF and construct,
maintain, modify, operate, or replace wireless support structures
in, along, across, upon, and under a public right-of-way.
B.
An applicant and/or operator shall comply with this chapter and any
rules, regulations, and design guidelines adopted by the Borough that
are consistent with this chapter for the installation and/or collocation
of a SWF and construction, maintenance, modification, operation, or
replacement of wireless support structures in, along, across, upon,
and under the public rights-of-way, unless otherwise prohibited by
state or federal law.
C.
All SWF shall be constructed and maintained so as not to impede or
impair public safety or the legal use of the public right-of-way by
the Borough, the traveling public, or other public utilities.
D.
Nothing in this chapter precludes the Borough from applying its generally
applicable health, safety, and welfare regulations when acting on
an application for a permit for a SWF in the public right-of-way.
As used in this chapter, the following terms shall have the
meanings indicated:
A utility pole owned or operated by the Borough, including
a utility pole that provides lighting or traffic control functions,
or other law enforcement functions, including light poles, traffic
signals, and structures for signage, and a pole or similar structure
owned or operated by the Borough such as a decorative pole.
The mounting or installing of an antenna facility on a preexisting
structure, and/or modifying a structure for the purpose of mounting
or installing an antenna facility on that structure.
A pole, arch, or structure placed in the public right-of-way
specifically designed and placed for aesthetic purposes and on which
no appurtenances or attachments have been placed or are permitted
to be placed in accordance with nondiscriminatory Borough practices
except for any of the following:
Those detailed design guidelines, specifications and examples
promulgated by resolution that address, on a nondiscriminatory basis,
the design and installation of facilities in the public rights-of-way,
insofar as they do not conflict with any federal or state law, rule
and regulation, including this chapter.
To install, mount, maintain, modify, operate, or replace
SWF.
A provider, operator or owner of SWF (who may also be the
applicant).
The surface of and the space above and below the paved or
unpaved portions of any public street, public road, public highway,
public way, public alley, public sidewalk, and any other land dedicated
or otherwise designated for the same now or hereafter held by the
Borough or other governmental entity.
A type of wireless communication facility (WCF) as specifically
defined by the Federal Communications Commission in Part 1 of Title
47 of the Code of Federal Regulations as follows, or as hereinafter
amended:
"Small wireless facility" means a facility that meets each of
the following conditions:
Each antenna (excluding associated antenna equipment) are cumulatively
no more than three cubic feet in volume; and
All antenna equipment associated with the facility (excluding
antennas) are cumulatively no more than 28 cubic feet in volume; and
The facility does not require antenna structure registration
under 47 CFR Part 17;
The facility is not located on tribal lands, as defined under
36 CFR § 800.16(x); and
The facility does not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
47 CFR § 1.1307(b).
An area that is zoned or otherwise designated as the town
center and/or historic district under municipal, state or federal
law and for which the Borough maintains and enforces in an uniform
and nondiscriminatory basis with regard to all users of the public
right-of-way pursuant to this chapter.
A pole or similar structure that is used in whole or in part
to carry electric transmission (as opposed to distribution) lines.
A pole or similar structure that is designed for, or used,
for carrying electric distribution lines or for carrying cables or
wires for electric, cable, or telecommunications service or for lighting,
traffic control, or directional signage.
A freestanding structure, including a monopole, decorative
pole, Borough-owned pole, transmission pole, and utility pole, or
other existing or proposed structure designed to support or capable
of supporting SWF.
A.
Application required. An applicant must apply to the Borough to locate
a new SWF and/or collocate any portion of a SWF on an existing wireless
support structure or to construct, maintain, modify, operate, or replace
wireless support structures in, along, across, upon, and under the
public right-of-way. Anyone seeking to perform any of these actions
shall first duly file a permit application with the Borough, in accordance
with the requirements of this chapter and additional requirements
as set forth in the small wireless facilities design guidelines as
adopted by resolution and which may be modified from time to time
by further resolution.
B.
Permit required. No person shall occupy or use the public right-of-way
without first obtaining, under this chapter, the required permit from
the Borough. Before placing SWF in the public right-of-way, an owner
must apply for and receive a permit. This provision shall not be construed
to waive any application fees or any other construction or work permit
necessary for work in the Borough. While notice to the Borough is
required, a permit from the Borough shall not be required for routine
maintenance or same-size and type replacement of small wireless facilities
that do not interfere with pedestrian or vehicular traffic.
C.
Required application materials. Unless otherwise required by state
or federal law, all applicants shall submit to the Borough all materials
and information associated with each application as outlined below
for the application to be considered complete:
(1)
The applicant's name, address, telephone number and e-mail address;
(2)
Facility owner's name, address, telephone number and email address,
if different from applicant;
(3)
The names, addresses, telephone numbers, and email addresses of all
consultants, if any, acting on behalf of the applicant with respect
to the filing of the application, and if warranted written authorization
for those consultants to speak on behalf of the applicant;
(4)
A description of the small wireless facilities being proposed in
order for the Borough to verify that the proposed facilities are small
wireless facilities as specifically defined by the FCC;
(5)
A mapping showing the exact location of the proposed small wireless
facilities in the case of multisite applications and photo simulations/depictions
of the type and style of the proposed small wireless facilities (which
should be in compliance with the Borough's small wireless facility
design guidelines);
(6)
A description of the proposed scope of work for the location or collocation
of the SWF. The scope and detail of such description shall be appropriate
to the nature and character of the work to be performed, with special
emphasis on those matters, including but not limited to subsurface
utilities, likely to be affected or impacted by the work proposed;
(7)
Verification that the SWF shall comply with this chapter, including
all applicable small wireless facilities design guidelines;
(8)
Verification of payment of the application fees, annual municipal
consent or administrative fee for use of public rights-of-way and
acknowledgment of its continuing annual obligation;
(9)
Evidence the applicant has received any necessary certificate of
public convenience and necessity or other required authority from
the Federal Communications Commission, or a statement that it is not
required;
(10)
A copy of an approved Pennsylvania Department of Transportation permit
and all documents required by PennDOT as part of the encroachment
permit application, if the proposed location is within a PennDOT right-of-way;
and
(11)
The applicant must provide a statement that the applicant has a lease,
attachment agreement or other authorization from the owner of the
wireless support structure proposed for collocation.
A.
Rights-of-way access fees: Each individual applicant will be subject
to an annual rights-of-way access fee if locating within a Borough
owned public right-of-way. Such fees shall not be in excess of those
amounts deemed reasonable by the Federal Communications Commission.
B.
Application processing costs. Unless otherwise provided by law, all
applications for permits pursuant to this chapter shall be accompanied
by an application processing cost which shall be the following: application
costs for small wireless facilities addressed in a consolidated application
shall be $500, which may include up to five small wireless facilities,
and an additional $100 for each small wireless facility beyond five,
up to and including 30 total small wireless facilities per one application,
and application costs of $1,000 for a new pole (not a collocation)
intended to support one or more small wireless facilities.
C.
Compensation. In addition to the applicable fee as specified above,
every permit shall include as a condition the applicant's agreement
to pay a right-of-way access fee of $200 per small wireless facility
per year, and/or other taxes and fees as may now or hereafter be lawfully
imposed on other businesses within the Borough. Additionally, if the
small wireless facilities is proposed to be located upon a Borough-owned
pole, and the Borough consents to such collocation, an additional
annual fee of $70 per small wireless facility shall be payable to
the Borough for such placement.
D.
Small wireless facilities collocated on Borough-owned utility poles
or structures outside the Borough rights-of-way are not subject to
the rate limitations in this chapter. Additionally, if the rate limitations
imposed by the Federal Communications Commission is altered in the
future, the Borough may alter its fees by resolution to be consistent
with the Federal Communications Commission's determinations or
as might be otherwise altered by the state or federal governments.
E.
Cease payment. Upon 30 days written notice to the Borough, an owner
is authorized to remove its small wireless facility from a Borough-owned
pole and cease paying the annual fee to the Borough as of the next
due date for payment following the removal, provided; however, the
owner shall pay its pro-rata share of the remaining term and expenses,
if any.
F.
Make-ready. For Borough-owned poles, the applicant shall reimburse
the Borough for expenses for any reasonable make-ready work, if any
are required. The Borough shall provide a good faith estimate for
any make-ready work necessary to enable the pole to support the requested
SWF, including pole replacement if necessary, within 30 days after
receipt of a completed request. The Borough may also require the applicant
to perform the make-ready work, including pole replacement if necessary,
and the applicant would be responsible for its own costs incurred
for such work.
G.
There may be the occasion whereby the Borough has already prepared
Borough-owned poles for collocation or multiple collocations via a
relationship with a third-party contractor. In such circumstances,
if deemed a reasonable and feasible alternative, the applicant may
be required to site its small wireless facility within/upon such Borough-owned
poles, and the applicant shall reimburse the Borough for the applicant's
percentage of costs incurred to make such Borough-owned pole collocation-ready
for the applicant.
A.
Permit application review.
(1)
Collocation of SWF. Absent a written agreement to the contrary between
the Borough and the applicant, the Borough shall grant or deny an
application to collocate, or to replace or modify any portion of a
SWF on, or associated with, an existing wireless support structure
not later than 60 days after the date of filing by an entity of a
completed application.
(2)
Installation of new SWF. Absent a written agreement to the contrary
between the Borough and the applicant, the Borough shall grant or
deny an application for a SWF on a new structure within the public
right-of-way not later than 90 days after the date of filing by an
entity of a completed application.
(3)
Removal of SWF. The Borough shall act on requests to remove wireless
support structures associated with SWF from the public right-of-way
typical to the review timeframes for the public right-of-way permit
required for this activity.
(4)
Completeness. Within 10 business days of receiving an application,
the Borough will determine and notify the applicant whether the application
is complete; or if an application is incomplete, the Borough must
specifically identify the missing information.
(5)
Application denials.
(a)
The Borough shall not unreasonably withhold or deny an application
for a permit to place a SWF within the public right-of-way.
(b)
If an application is denied, the Borough will provide in writing
its reasons for denying the request, including, if applicable, specific
references to any applicable law supporting the denial.
(c)
Notwithstanding an initial denial, the applicant may cure the
deficiencies identified by the Borough and resubmit the application
within 30 days of the denial, and the Borough will approve or deny
the revised application within 30 days of receipt of it, unless additional
deficiencies are discovered.
A.
Applicants seeking to construct, modify, collocate, or replace more
than one SWF, may file, at the applicant's discretion, a consolidated
application for up to 30 requests in a single application and receive
a single permit for the construction, modification, collocation, or
replacement of the SWF subject to the following:
(1)
This single application may be filed for multiple SWF only if they
are of substantially the same type.
(2)
The Borough must separately address SWF for which incomplete information
has been received or which are denied and it must grant a permit for
any and all sites in a single application that it does not deny subject
to the requirements of this chapter.
A.
Maximum height. The maximum height of a new pole for the installation
of a SWF is limited to a maximum height of 50 feet, subject to any
restrictions imposed by the small wireless facility design guidelines.
Applicant may collocate on existing wireless support structures provided
the small wireless facility's height still qualifies as a small
wireless facility as defined by this chapter and as by the Federal
Communications Commission.
B.
Alternate locations. If an applicant is seeking to install a new
wireless support structure as part of its application, the Borough
may propose that the small wireless facility be located on an existing
utility pole or existing wireless support structure within 100 feet
of the proposed location. The applicant shall accept the proposed
alternate location so long as it has the right to use the location
on reasonable terms and conditions, unless the alternate location
imposes technical limits, acts as an effective prohibition under federal
law, or additional unreasonable costs will be incurred as determined
by the applicant. If the applicant refuses an alternate location based
on the foregoing, the applicant shall provide legally competent evidence
in the form of a written certification describing the property rights,
technical limits or cost reasons that prevent the alternate location
from being utilized.
C.
The Borough may reserve space on Borough-owned poles for future public
safety uses or for Borough electric utility uses. Such reservation
may preclude collocation of small wireless facilities if the Borough
reasonably determines that the Borough's poles cannot accommodate
both uses, or if the collocation cannot be accommodated due to physical
limitations of the Borough-owned poles.
D.
In certain circumstances, collocation is not feasible and a new pole
needs to be installed by the applicant. In such cases, a small wireless
facility located on a new pole shall be separated by 150 feet from
any other small wireless facility located upon a pole with that singular
purpose (meaning it is not a collocation but another stand-alone SWF
pole).
A.
The Borough has, or shall, adopt small wireless facility design guidelines
with objective, technically feasible criteria applied in a nondiscriminatory
manner that reasonably match the aesthetics and character of the immediate
area.
B.
The small wireless facility design guidelines will provide examples
of SWF preferences including visual depictions (if such depictions
are readily available and identified by the Borough).
C.
The provisions in this chapter shall not limit or prohibit the Borough's
discretion to promulgate and make publicly available other information,
materials or requirements in addition to, and separate from, small
wireless facility design guidelines so long as the information, materials,
or requirements do not conflict with state or federal law.
D.
All small wireless facilities and associated equipment located within
the public right-of-way shall be located such that it meets ADA requirements
and does not hinder, obstruct or impede usual pedestrian and vehicular
travel.
E.
The Borough shall have authority to update or supplement the small
wireless facility design guidelines to address relevant changes in
law, technology, or administrative processes.
F.
Wireless support structure design standards.
(1)
General guidance.
(a)
SWF equipment must be indistinguishable from the support pole
or structure to the greatest degree possible using matching colors,
textures, and materials. The antennas and related equipment shall
be in a color that will provide the most camouflage.
(b)
All wires, antennas, and other small wireless facility equipment
shall be enclosed and not visible.
(c)
Screening and equipment enclosures shall blend with or enhance
the surrounding context in terms of scale, form, texture, materials,
and color. Equipment shall be concealed as much as possible by blending
into the natural and/or physical environment.
(d)
Casing to enclose all wires, antennas, and other small wireless
facility equipment may be mounted on top of existing and new poles
in a cylinder shape to look like an extension of the pole.
(e)
Brand logos and other signage are prohibited on all SWF except
contact information to be used by workers on or near the SWF and as
otherwise required by federal or state law. Signage will be no larger
than required to be legible from street level.
A.
This chapter may not be construed to limit the Borough's authority
to enforce historic preservation zoning regulations consistent with
the local, state or federal law including the National Historic Preservation
Act of 1966 (54 U.S.C. Section 300101 et seq.), and the regulations
adopted to implement those laws.
B.
As a condition for approval of new small wireless facilities or new
wireless support structure in a Town Center District or Historic District,
the applicant shall comply, to the greatest extent possible, with
the design and aesthetic standards of Town Center District and Historic
District to minimize the negative impact to the aesthetics in these
districts.
C.
New districts. Nothing in this chapter shall prohibit or otherwise
limit the Borough from establishing subsequent new town center or
historic districts, provided however, that facilities and structures
for which a permit was approved or deemed approved pursuant to this
chapter prior to the establishment of the new district remain subject
to the provisions of this chapter, including routine maintenance and
replacement of those facilities and structures. If a wireless services
provider or a wireless infrastructure provider replaces such facilities
in a manner that does not comply with this chapter, or if a wireless
services provider or a wireless infrastructure provider relocates
such facilities, such replacement or relocation is subject to the
then-existing provisions and requirements of the newly established
district.
A.
Permit effect and duration. The Borough's approval term for
collocation or a new pole shall be for a period of nine months. If
construction or installation is not begun within nine months of the
permit issuance, the owner shall be required to submit a new application
and associated fees. A permit from the Borough authorizes an owner
to undertake only certain activities in accordance with the chapter
and does not create a property right or grant any authority whatsoever
to the owner to impinge upon the rights of others.
B.
Compliance with all applicable laws and Borough Code. Owner shall
always maintain compliance with all applicable federal, state and
local laws, regulations, ordinances, or other rules. If state or federal
standards and regulations are amended, the owners of any portion of
SWF governed by this chapter shall bring any facilities and/or structures
into compliance with the revised standards and regulations within
the time mandated by such amendment or, if no time is mandated, as
soon as practicable under the circumstances, but no longer than 90
days. The Borough is not required to provide notice of any amendments
in order to trigger this responsibility. Failure to bring SWF into
compliance with any revised standards and regulations shall constitute
grounds for removal at the owner's expense.
C.
Inspections; emergencies. The Borough or its designee may inspect
any portion of SWF in the right-of-way upon reasonable notice to the
owner. The owner shall cooperate with all inspections. The Borough
reserves the right to support, repair, disable, or remove any elements
of the facility in emergencies or when the facility threatens imminent
harm to persons or property. If circumstances permit, the Borough
shall notify the owner and provide the opportunity to move such facilities,
poles, or support structures prior to the Borough doing so, and the
Borough shall notify the owner after doing so.
D.
Relocation or adjustment as requested by Borough. If requested by
the Borough, in order to accomplish construction and maintenance activities
directly related to improvements for the health, safety, and welfare
of the public, an owner shall relocate or adjust its facilities within
the public right-of-way at no cost to the Borough, as long as such
request similarly binds all users in or on such public way. Such relocation
or adjustment shall be completed in accordance with law.
E.
Contact information for responsible parties. Within 10 days of any
changes to any of the contact information provided in the application,
the owner shall provide notice of the change to the Borough.
F.
Indemnification. Any entity who owns or operates SWF in the public
right-of-way shall indemnify, protect, defend, and hold the Borough
and its elected officials, officers, employees, agents, and volunteers
harmless against any and all claims, lawsuits, judgments, costs, liens,
losses, expenses, fees to include reasonable attorney fees and costs
of defense, proceedings, actions, demands, causes of action, liability
and suits of any kind and nature, including personal or bodily injury
or death, property damage or other harm for which recovery of damages
is sought, to the extent that it is caused by the negligence of the
entity who owns or operates the SWF and wireless service in the right-of-way,
any agent, officer, director, representative, employee, affiliate,
or subcontractor of the operator, or their respective officers, agents,
employees, directors, or representatives while installing, repairing,
or maintaining facilities in the right-of-way.
G.
Good condition required. SWF shall at all times be kept and maintained
in good condition, order, and repair by qualified maintenance and
construction personnel, so that the same shall not menace or endanger
the health, safety or welfare of any person or property. All SWF shall
be subject to generally applicable property maintenance requirements
and to visual inspection by code enforcement officers.
H.
Relocation for public improvement projects. To the extent that the
Borough requires it to do so in the reasonable exercise of its police
powers, owner shall remove and relocate the permitted SWF at owner's
sole expense to accommodate construction of a public improvement project
by the Borough.
A.
If a SWF is discontinued for a period of 120 days or is abandoned
without notice from the owner, it shall be considered abandoned and
the Borough may remove it at the owner's expense if the Borough
provides written notice of its intent to remove under this section
and, within 30 days after receipt of such written notice, the owner
of the SWF does not reply to the Borough in writing that the SWF continues
to be in operation. Costs for such removal shall be as collectible
as provided by law.
B.
The Borough reserves the right to inspect and to request information
from the owner, which the owner shall provide following such request,
as to the continued use of the operator's SWF(s) within the right-of-way.
A.
Prevention of failures and accidents. Any person who owns or operates
a portion of a SWF sited in the public right-of-way shall always employ
ordinary and reasonable care and install and maintain it using industry
standard technology for preventing failures and accidents which are
likely to cause damage, injury, or nuisance to the public.
B.
Compliance with fire safety and FCC regulations. All SWF, including,
but not limited to wires, cables, fixtures, and other equipment, shall
be installed and maintained in compliance with the requirements of
the National Electric Code, all FCC, state, and local regulations,
and in such manner that will not interfere with the use of other property
or any existing public/private utilities or public safety systems.
C.
Each attachment of wireless facilities should bear a marker or insignia
legible at street level, identifying the owner of the SWF and contact
information.
A.
Nothing in this chapter authorizes the collocation of small wireless
facilities on:
(1)
Property owned by a private party without the written consent of
the property owner;
(2)
Property owned or controlled by a unit of local government that is
not located within public rights-of-way without the written consent
of the unit of local government (local governments are, however, required
to authorize the collocation of small wireless facilities on utility
poles owned or controlled by the local government or located within
rights-of-way to the same extent the local government permits access
to utility poles for other commercial projects or uses);
(3)
A privately-owned utility pole or wireless support structure, without
the consent of the property owner; or
(4)
Property owned, leased or controlled by a park district, forest preserve
district, or conservation district for public park, recreation or
conservation purposes, without the consent of the affected district.
The appeals process shall be as provided for, and as set forth,
by state and federal laws including rulings issued by the Federal
Communications Commission. The provisions contained herein regulating
small wireless facilities are intended to comply with federal and
state laws and regulations in effect as of the date of adoption of
this section. To the extent that any of the provisions in this section
conflict with any federal or state statute or regulations, the federal
or state statutes or regulations shall control unless the applicable
federal or state statutes or regulations allow for more stringent
provisions in local ordinances. In which case, the more stringent
provisions of local ordinances shall remain in effect and shall control
in such instances.
The provisions of this chapter are severable. If any provision
or subsection, or the application of any provision or subsection to
any person or circumstances is held invalid, the remaining provisions,
subsection, and applications of such chapter to other persons or circumstances
shall not be made invalid as well. It is declared to be the intent
of this section that the remaining provisions would have been adopted
had such invalid provisions not been included in this chapter when
originally adopted by Council.
Any person or corporation who shall be convicted of a violation
of any of the provisions of this chapter before any District Justice
shall be sentenced to pay a fine of not more than $1,000, together
with costs of prosecution, or to imprisonment in the county jail for
a term not to exceed 30 days, or both. Each day or portion thereof
that such violation continues or is permitted to continue shall constitute
a separate offense, and each day or portion thereof that such violation
continues or is permitted to continue shall constitute a separate
offense, and each section of this chapter that is violated shall also
constitute a separate offense. Nothing herein shall prevent the Borough
from taking any other lawful action, including civil actions at law
or equity, including temporary restraining orders, preliminary injunctions
and permanent injunctions, as is necessary to prevent or remedy any
violations.
