[HISTORY: Adopted by the City Council of the City of East
Orange2-24-2020 by Ord. No. 5-2020. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the
meanings indicated:
A small box-like or rectangular structure used to facilitate
utility or wireless service from within the municipal right-of-way.
A single telecommunication tower, pole, mast, cable, wire
or other structure supporting multiple antennas, dishes, transmitters,
repeaters, or similar devices owned or used by more than one public
or private entity.
The part of the electric system, after the transmission system,
that is dedicated to delivering electric energy to the end user.
Includes, but is not limited to, the following unless located
within a recognized Historic District:
A single ground or building mounted receive-only radio or television
antenna including any mast, for the sole use of the tenant occupying
the residential parcel on which the radio or television antenna is
located, with an antenna height not exceeding 25 feet;
A ground- or building-mounted citizens' band radio antenna,
including any mast, if the height (post and antenna) does not exceed
35 feet;
A ground-, building-, or tower-mounted antenna operated by a
federally licensed amateur radio operator as part of the Amateur Radio
Service, if the height (post and antenna) does not exceed 35 feet;
A ground- or building-mounted receive-only radio or television
satellite dish antenna, which does not exceed 36 inches in diameter,
for the sole use of the resident occupying a residential parcel on
which the satellite dish is located; provided the height of said dish
does not exceed the height of the ridgeline of the primary structure
on said parcel:
Mobile services providing public information coverage of news
events of a temporary nature.
Hand-held devices such as cell phones, business-band mobile
radios, walkie-talkies, cordless telephones, garage door openers and
similar personal-use devices.
Government-owned and operated receive and/or transmit telemetry
station antennas for supervisory control and data acquisition (SCADA)
systems for water, flood alert, traffic control devices and signals,
stormwater, pump stations and/or irrigation systems, with heights
not exceeding 35 feet.
City-owned and -operated antennas used for emergency response
services, public utilities, operations and maintenance if the height
does not exceed 70 feet.
Telecommunication facilities less than 50 feet in height, in
compliance with the applicable sections of this chapter, located on
a parcel owned by the Town and utilized for public and/or quasipublic
uses where it is found by the Town Board to be compatible with the
existing uses of the property and serving the public interest.
Telecommunication facilities, including multiple antennas, in
compliance with the applicable sections of this chapter, located on
an industrial parcel and utilized for the sole use and purpose of
a research and development tenant of said parcel, where it is found
by the planning director to be aesthetically compatible with the existing
and surrounding structures.
A pole that is in lawful existence within the municipal right-of-way.
A cabinet that is not attached to an existing pole and touching
the ground.
Telecommunication towers, poles or similar structures greater
than 50 feet in height, including accessory equipment such as transmitters,
repeaters, microwave dishes, horns, and other types of equipment for
the transmission or receipt of such signals, as well as support structures,
equipment buildings and parking areas. "Public right-of-way" means
the area on, below, or above property that has been designated for
use as or is used for a public roadway, highway, street, sidewalk,
alley or similar purpose, and for purposes of this chapter shall include
public utility easements, but only to the extent the City has the
authority to permit use of the area for this purpose. The term does
not include a federal interstate highway or other areas that are not
within the legal jurisdiction, ownership or control of the City.
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 City as an easement or in
fee simple ownership. The term also includes any other area that is
determined by the City to be a right-of-way in which the City may
allow the installation of poles, cabinets and antennas, as well as
rights-of-way held by the County of Essex where the City approval
is required for the use of same pursuant to N.J.S.A. 27:16-6.
A long, slender, rounded supported structure constructed
of wood or metal located in the municipal right-of-way.
A device that is attached to a pole and used to transmit
radio or microwave singles and shall include, but not be limited to,
small cell equipment and transmission media such a femtocell, picocell,
microcells and outside distributed antenna systems.
A cabinet that is proposed to be place on an existing or
proposed pole.
A pole that is proposed to be placed in the municipal right-of-way.
An agreement that sets forth the terms and conditions for
the use of the municipal right-of-way and includes but is not limited
to municipal franchise agreements.
An approval from the City's governing body setting forth
the applicant's compliance with the requirements of this chapter.
All equipment required for the operation and maintenance
of so-called "small cell" wireless communications systems that transmit
and/or receive signals but are not "major telecommunications facilities,"
including antennas, microwave dishes, power supplies, transformers,
electronics, and other types of equipment required for the transmission
or receipt of such signals.
Existing poles within the same right-of-way which are located
within 500 feet of the proposed pole.
Electric, telephone or cable service.
A.
General.
(1)
No
small cell installation shall be constructed, erected, modified, mounted,
attached, operated or, maintained within the right-of-way within the
City without the issuance of a permit by the governing body of the
City of East Orange which may only be issued after the City and applicant
enter into a right-of-way agreement that complies with the requirements
of this chapter. Governing body approval shall also be required when
one seeks to convert or modify an existing telecommunications facility
into a small cell installation.
(2)
No
approval granted under this chapter shall confer any exclusive right,
privilege, license or franchise to occupy or use the public right
of way of the City for the delivery of telecommunications services
or any other purpose.
B.
Procedure
to file application.
(1)
Prior
to filing a formal application, applicants shall schedule a meeting
with the City's Director of Public Works or her designee to review
the scope of the applicant's proposal. The City Engineer or her designee
shall schedule the initial review meeting within 14 days of the written
request for same. If the City neglects to schedule the meeting, the
applicant is free to proceed to the next stage of the process.
(2)
An
applicant is free to submit her application, along with the required
deposit, following the conclusion of the initial meeting with the
City's Director of Public Works. The application shall be filed with
the Department of Public Works.
C.
Application
content. At a minimum all applications shall include:
(1)
Detailed
site and engineering plans for each proposed small cell installation,
including all associated equipment necessary for its operation;
(2)
A master
plan which shall reference all existing small cell installations in
the applicant's City of East Orange inventory, any such facilities
in the abutting towns which provide service to areas within the City
of East Orange, any changes proposed within the following twelve-month
period, including plans for new locations and the discontinuance or
relocation of existing facilities;
(3)
Photographs
of proposed facility equipment;
(4)
A visual
impact analyses with photo simulations;
(5)
Certification
by a certified radio-frequency engineer that the small cell installation
will be in compliance with the FCC standards for RF emissions as they
relate to the general public, including aggregate emissions for all
co-located equipment;
(6)
Certification
that the applicant has a right under state law to install wireless
telecommunication facilities in the public right-of-way;
(7)
Documentation
that owners of all properties within 200 feet of the proposed small
cell installations have been notified in writing via certified mail
of the proposed installation, including its exact location;
(8)
A site
location alternative analysis describing the location of other sites
considered, the availability of those sites, the extent to which other
sites do or do not meet the provider's service or engineering needs,
and the reason why the subject site was chosen. The analysis shall
address the following issues:
(a)
How the proposed location of the small cell installation relates
to the objective of providing full wireless communication services
within the City of East Orange at the time full service is provided
by the applicant throughout the City of East Orange.
(b)
How the proposed location of the proposed small cell installation
relates to the location of any existing facilities within and near
the City of East Orange.
(c)
How the proposed location of the proposed small cell installation
relates to the anticipated need for additional antennas within and
near the City of East Orange.
(d)
How the plan specifically relates to and is coordinated with the
needs of all other providers of wireless communication services within
the City of East Orange.
(9)
An
executed indemnification agreement that complies with the contents
of this chapter.
(10)
A
proposed right-of-way agreement that complies with the contents of
this chapter.
D.
Fees.
(1)
The
City shall assess a per-installation deposit fee of $10,000 to cover
the City's costs of processing, reviewing, evaluating, conducting
a public hearing and other activities involved in consideration of
the application and conducting oversight of the construction of the
small cell installation to ensure compliance with the City's laws.
The City shall also reserve the right to retain independent technical
consultants to review and assess all applications. All internal city
activities will be billed at a rate of $50 per hour. Independent technical
consultants shall bill at a rate of $125 per hour. Monthly invoices
will be generated detailing the amount of funds that have been drawn
from the deposit over the preceding month. If and when the $10,000
fund is depleted, the applicant shall submit an additional $10,000.
After installation is complete, any deposit funds that remain shall
be returned to the applicant.
(2)
In
addition to the foregoing, as fair and reasonable compensation applicants
shall pay the City of East Orange $270 per year for each small cell
installation located with the City's right of way.
E.
Bond requirement.
(1)
Compliance bond.
Upon approval of the application, the applicant shall be required
to post a compliance bond in the amount of $50,000 for each small
cell installation, such bond to be held and maintained during the
entire period of permittee's operation of each small cell installation
in the City as a guarantee that no such installation, including any
co-located equipment, exceeds or will exceed the allowable FCC limits
for RF radiation exposure to the general public as determined by a
qualified independent RF engineer.
F.
Indemnification.
(1)
The
applicant shall execute an indemnification agreement provided by the
City as part of the application process. At a minimum, the applicant
will agree to defend, hold harmless and fully indemnify the City,
its officers, employees, agents, attorneys and volunteers from (i)
any claim, action or proceeding brought against the City or its officers,
employees, agents or attorneys to attack, set aside, void or annul
any approvals given by the City; (ii) from any claims or suits stemming
from injuries that are alleged to be caused by the telecommunications
equipment installed by the applicant; (iii) from any legal actions
brought against the City wherein it is alleged that there has been
a reduction or diminution in the value of their property that they
attribute to.
A.
Each year,
commencing on the anniversary of the issuance of the permit, the applicant
shall submit to the City an affidavit which shall list all active
small cell wireless installations it owns within the City certifying
(1) that each small cell installation is covered by liability insurance
of the amount of $1,000,000 per installation and that each policy
names the City of East Orange as an additional insured; and (2) each
active installation has been inspected for safety and found to be
in sound working condition an in compliance with all federal safety
regulations concerning radio frequency radiation exposure ("RF exposure").
B.
The City
reserves the right to employ a qualified independent expert to conduct
random unannounced tests of the permittee's small cell wireless installations
located within the City to certify compliance with all applicable
FCC radio-frequency emission limits as they pertain to exposure to
the general public. Independent experts will be compensated at a rate
of $125 per hour in connection with the foregoing tests. Permits shall
remit payment within 30 days of being invoiced. Failure to make payment
will result in the imposition of a municipal lien on the block and
lot where the subject equipment is located. The lien will accrue interest
at the rate of 8% for the first $1,500 and 18% for any amounts over
$1,500.
C.
If independent
tests reveal that any small cell installation or installations owned
or operated by permittee and/or its lessees, singularly or in the
aggregate, is emitting RF radiation in excess of FCC exposure guidelines
(at present the guidelines limit exposure to 580 microwatts per square
centimeter) as they pertain to the general public, the City shall
notify the permittee and all residents living within 1,500 feet of
small cell installation(s) of the violation and the permittee shall
have 48 hours to bring the small cell installation into compliance.
Failure to reduce RF radiation to legally permissible levels will
result in the forfeiture of the compliance bond and the City shall
then have the right to demand the removal of all of the permittee's
small cell installations within the City.
D.
All small
cell wireless installations shall be removed within 30 days of being
taken out of use. Failure to remove these installations will result
in the imposition of a payment of $100 for each day the installations
are not removed. Failure to make payment will result in the imposition
of a municipal lien on the block and lot where the subject equipment
is located. The lien will accrue interest at the rate of 8% for the
first $1,500 and 18% for any amounts over $1,500.
E.
Failure
to submit a timely annual report will result in the imposition of
a payment of $100 payment for each day the report is not provided.
Failure to make payment will result in the imposition of a municipal
lien on the equipment. The lien will accrue interest at the rate of
8% for the first $1,500 and 18% for any amounts over $1,500.
F.
Non-permitted
installations, which includes any small cell installations constructed,
erected, modified or enhanced prior to the issuance of a site-specific
permit from the City, shall be removed prior to the submission of
any other application. No applications for small cell installations
shall be considered and no so called "shot clock" for approval shall
commence while such unauthorized installations remain.
A.
Notwithstanding
any franchise or right of way agreement to the contrary, all small
cell installations proposed to be placed in the right-of-way shall
comply with the design requirements detailed in this chapter.
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.
(a)
No proposed pole shall be erected in the right-of-way unless it:
[1]
Is replacing an existing pole; or
[2]
Is approved pursuant to a land development application by either
the Zoning Board of Adjustment or Planning Board pursuant to a land
use application; or
[3]
Is located on the opposite side of the street from the electric distribution
system; and
[4]
For sites in the residential zones 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 nonresidential zones is a minimum
of 100 linear feet from any other existing pole or proposed pole along
the same side of the street; and
[5]
Is not located in an area with underground utilities; and
[6]
Does not inhibit any existing sight triangles or sight distances;
and
[7]
Allows adequate room for the public to pass and re-pass across, along
and through the right-of-way; and
[8]
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.
(b)
Ground-level cabinet siting standards.
[1]
Ground-level cabinets are prohibited in the municipal right-of-way
in the residential zones and any future residential zones.
[2]
Ground-level cabinets are permitted in the nonresidential zones provided
that such ground-level cabinet:
[a]
Is less than 28 cubic feet in volume; and
[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; and
[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.
(c)
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; and
[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; and
[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 residential
zones and nonresidential zones provided that each pole-mounted cabinet:
[a]
Does not exceed 16 cubic feet; and
[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; and
[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.
