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Town of Kearny, NJ
Hudson County
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Table of Contents
Table of Contents
Code
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[8-4-2020 by Ord. No. 2020-25[1]]
As used in this chapter, the following terms shall have the meanings indicated:
ANTICIPATED MUNICIPAL EXPENSES
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 Town.
CABINET
A small box-like or rectangular structure used to facilitate utility or wireless service from within the municipal right-of-way.
ELECTRIC DISTRIBUTION SYSTEM
The part of the electric system, after the transmission system, that is dedicated to delivering electric energy to an end user.
EXISTING POLE
A pole that is in lawful existence within the municipal right-of-way.
GROUND-LEVEL CABINET
A cabinet that is not attached to an existing pole and is touching the ground.
MUNICIPAL RIGHT-OF-WAY
The surface of, and the space above or below, any public street, road, lane, path, public way or place, sidewalk, alley, boulevard, parkway, drive, and the like, held by the Town as an easement or in fee simple ownership. This term also includes any other area that is determined by the Town to be a right-of-way in which the Town may allow the installation of poles, cabinets and antennas, as well as rights-of-way held by the County of Hudson where the Town's approval is required for the use of same pursuant to N.J.S.A. 27:16-6.
POLE
A long, slender, rounded support structure constructed of wood or metal located in the municipal right-of-way.
POLE-MOUNTED ANTENNA
A device that is attached to a pole and used to transmit radio or microwave signals and shall include, but not be limited to, small cell equipment and transmission media such as femtocells, picocells, microcells, and outside distributed antenna systems.
POLE-MOUNTED CABINET
A cabinet that is proposed to be placed on an existing pole or proposed pole.
PROPOSED POLE
A pole that is proposed to be placed in the municipal right-of-way.
RIGHT-OF-WAY AGREEMENT
An agreement that sets forth the terms and conditions for use of the municipal right-of-way and includes, but is not limited to, municipal franchise agreements.
RIGHT-OF-WAY PERMIT
An approval from the Mayor and Council setting forth applicant's compliance with the requirements of this chapter.
SURROUNDING STREETSCAPE
Existing poles within the same right-of-way which are located within 500 feet of the proposed pole.
TOWN NONRESIDENTIAL ZONES
All areas of the Town that are not Town residential zones, including areas within the zoning jurisdiction of the New Jersey Sports and Exposition Authority.
TOWN RESIDENTIAL ZONES
The R-1, R-3, R-4, R-5, R-6, R-7, and R-8 of the Town of Kearny Zoning Regulations.
UTILITIES REGULATED BY THE BOARD OF PUBLIC UTILITIES
Companies subject to regulation by the New Jersey Board of Public Utilities under Chapter 48 of the Revised Statutes.
UTILITY SERVICE
Electric, telephone or cable service.
WIRELESS FACILITY
A pole, cabinet, or pole-mounted antenna.
[1]
Editor's Note: Section 2 of this ordinance stated that applications for any right-of-way permit governed by this chapter shall no longer be required to apply for approval under Ch. 30, Fiber Optic Cable, of the Town Code.
[8-4-2020 by Ord. No. 2020-25]
a. 
No person shall operate or place any type of pole-mounted antenna within the municipal right-of-way without first entering into a right-of-way agreement with the Town pursuant to the provisions of this chapter.
b. 
The terms of said right-of-way agreement shall include:
1. 
A term not to exceed 15 years;
2. 
Reasonable insurance requirements;
3. 
A fine for unauthorized installations;
4. 
A reference to the siting standards set forth in this chapter; and
5. 
Any other items which may be reasonably required.
[8-4-2020 by Ord. No. 2020-25]
Notwithstanding any franchise or right-of-way agreement to the contrary, all facilities proposed to be placed within the municipal right-of-way by a utility regulated by the Board of Public Utilities and all other entities lawfully within the municipal right-of-way shall be subject to the standards and procedures set forth in this chapter and shall require right-of-way permits for the siting of poles, antennas and cabinets in the municipal right-of-way.
[8-4-2020 by Ord. No. 2020-25]
a. 
No pole, antenna or cabinet shall be installed within the municipal right-of-way without the issuance of a right-of-way permit.
b. 
Pole Siting Standards.
1. 
Height. No proposed pole shall be taller than 35 feet or 110% of the height of poles in the surrounding streetscape, whichever is higher.
2. 
Distance from Curbline. No proposed pole shall be farther than 18 inches from the curbline.
3. 
Location, Safety and Aesthetics. No proposed pole shall be erected in the right-of-way unless it:
(a) 
Is replacing an existing pole; or
(b) 
Approved pursuant to a land development application by either the Zoning Board of Adjustment or Planning Board pursuant to a land use application; or
(c) 
Located on the opposite side of the street from the electric distribution system; and
(d) 
For sites in the Town residential zones, there is a minimum of 200 linear feet from any other existing pole or proposed pole along the same side of the street, or for sites in the Town nonresidential zones, there is a minimum of 100 linear feet from any other existing pole or proposed pole along the same side of the street; and
(e) 
Is not located in an area with underground utilities; and
(f) 
Does not inhibit any existing sight triangles or sight distances; and
(g) 
Allows adequate room for the public to pass and repass across, along and through the right-of-way; and
(h) 
Is finished and/or painted and/or otherwise camouflaged, in conformance with best available stealth technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties.
c. 
Ground-Level Cabinet Siting Standards.
1. 
Ground-level cabinets are prohibited in the municipal right-of-way in the Town residential zones and any future residential zones.
2. 
Ground-level cabinets are permitted in the Town nonresidential zones provided that such ground-level cabinet:
(a) 
Is less than 28 cubic feet in volume;
(b) 
Is finished and/or painted so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties;
(c) 
Does not inhibit any existing sight triangles or sight distance; and
(d) 
Allows adequate room for the public to pass and repass across, along and through the municipal right-of-way.
d. 
Pole-Mounted Antenna and Pole-Mounted Cabinet Siting Standards.
1. 
Pole-mounted antennas are permitted on existing poles, provided that each pole-mounted antenna:
(a) 
Does not exceed three cubic feet in volume;
(b) 
Is finished and/or painted and/or otherwise camouflaged, in conformance with best available stealth technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties;
(c) 
Does not inhibit any sight triangles or sight distance; and
(d) 
Allows adequate room for the public to pass and repass across, along and through the municipal right-of-way.
2. 
Pole-mounted cabinets are permitted on existing poles in all Town residential zones and Town nonresidential zones provided that each pole-mounted cabinet:
(a) 
Does not exceed 16 cubic feet;
(b) 
Is finished and/or painted and/or otherwise camouflaged, in conformance with best available stealth technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties;
(c) 
Does not inhibit any sight triangles or sight distance; and
(d) 
Allows adequate room for the public to pass and repass across the municipal right-of-way.
3. 
The Town may also require that an applicant provide a certification from a licensed professional engineer attesting to the structural integrity of any pole-mounted antenna or pole-mounted cabinet.
[8-4-2020 by Ord. No. 2020-25]
a. 
Preapplication Meeting. Prior to making a formal application with the Town for use of the municipal right-of-way, all applicants are advised to schedule a meeting with the Town Engineer to review the scope of the applicant's proposal.
b. 
The Mayor and Council may, by resolution, approve or disapprove every right-of-way permit application based on the recommendations provided to it pursuant to the provisions of this chapter.
c. 
All applications made under this chapter shall comply with the timeline 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.
d. 
Every application made pursuant to this chapter must include a signed and sealed survey prepared by a New Jersey Licensed Professional Land Surveyor demonstrating that any proposed pole and/or proposed ground-level cabinet is located within the municipal right-of-way. Any such application which does not include such a survey shall immediately be deemed incomplete.
e. 
New Poles and Ground-Level Cabinets.
1. 
The Planning Board shall, pursuant to N.J.S.A. 40:55D-25(B)(3), review applications for the placement of new poles and ground-level cabinets within the municipal right-of-way and advise the Mayor and Council of its recommendation to approve or disapprove same.
(a) 
If the Planning Board recommends the disapproval of a right-of-way permit, it shall set forth the factual basis for such a disapproval in writing.
f. 
Pole-Mounted Antenna and Pole-Mounted Cabinets.
1. 
The Town Engineer shall review applications to place pole-mounted antenna and pole-mounted cabinets within the municipal right-of-way and advise the Town Committee of his or her recommendation to approve or disapprove same.
(a) 
If the Town Engineer recommends the disapproval of a right-of-way permit, he or she shall set forth the factual basis for such a disapproval in writing.
g. 
If the Town Committee denies any application for a right-of-way permit under this chapter, it shall do so in writing and set forth the factual basis for the denial.
h. 
Waiver. Mayor and Council may waive any siting standard set forth in this chapter 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);
2. 
Will prohibit or have the effect of prohibiting personal wireless service pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II);
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 within the Town.
[8-4-2020 by Ord. No. 2020-25]
a. 
Every right-of-way permit application shall include a right-of-way permit fee in the following amounts:
1. 
One to five placements on existing poles: $500, plus $100 for each additional placement on existing poles.
2. 
$1,000 for new pole installation.
b. 
Deposit Towards Anticipated Municipal Expenses.
1. 
In addition to the right-of-way permit fee, the Town Engineer may, in his or her sole discretion, require the posting of up to $2,000 deposit towards anticipated municipal expenses related to an application made pursuant to this chapter.
2. 
Any applicant's deposit towards anticipated municipal expenses shall be placed in an escrow account. If said deposit contains insufficient funds to enable the Town to perform its review, the Town's Chief Financial Officer of the Town shall provide applicant with a notice of insufficient balance. In order for review to continue, the applicant shall, within 10 days of said notice, post a deposit to the account in an amount to be mutually agreed upon.
3. 
The Town's Chief Financial Officer shall, upon request by the applicant, after a final decision has been made by the Mayor and Council regarding the pending right-of-way permit application, refund any unused balance from the applicant's deposit towards anticipated municipal expenses.
c. 
Annual Fees. The entity using any wireless facility installed pursuant to this chapter shall pay an annual fee to the Town in the amount of $270 per wireless facility. The annual fee shall be paid on the dates set forth in the right-of-way agreement.
[8-4-2020 by Ord. No. 2020-25]
a. 
Any right-of-way permit approved pursuant to this chapter does not relieve the applicant from receiving consent from the owner of the land above which an applicant's facility may be located as may be required by New Jersey law.
b. 
In addition to receiving a right-of-way permit, an applicant must also receive all necessary road opening permits, construction permits and any other requirement set forth in the Town Code of the Town of Kearny or New Jersey statute.
c. 
The Town's consent for use of county roads, as required pursuant to N.J.S.A. 27:16-6, shall take the form of a right-of-way permit subject to the standards and application process set forth in this chapter. No such applicant shall be required to enter into a right-of-way agreement with the Town.