Borough of Palisades Park, NJ Telecommunications Facilities in the Public Right-of-Way

[1]

Editor's Note: This ordinance superseded former Art. XIII, Rights-of-Way for 5G Telecommunications, added 12-16-2020 by Ord. No. 2020-10.

Short title. This article is titled the "Telecommunications Facilities in the Public Right-of-Way," and amends all applicable provisions of the Borough of Palisades Park Revised General Ordinances, and any existing local laws, rules, orders, resolutions and ordinances relating to the subject matter of this article.

Purpose.

(1)

It is the intent of this article of Chapter 300 of the Revised General Ordinances to regulate the placement of telecommunications equipment, including poles, towers, antennas and other infrastructure located on municipal rights-of-way. The placement of telecommunications equipment outside of the municipal right-of-way shall be governed by Chapter 300, Telecommunications Antennas and Towers.[1]

[1]

Editor’s Note: So in original.

(2)

It is furthermore intended that this article shall control in the event of any inconsistency between the provisions of this article and any existing agreements, licenses or franchises in existence and which govern existing small wireless facilities in the municipal right-of-way, and that the prevailing terms of this article shall supersede and replace any conflicting terms in said agreements or licenses, and shall govern all future relationships between the Borough and the applicable parties in said licenses and agreements.

Definitions. As used in this article, the following terms shall have the meanings indicated:

ADMINISTRATIVE REVIEW

Ministerial review of an application by the Borough relating to the review and issuance of a permit, including review by the designee, a wireless consultant with knowledge beyond the expertise of Borough personnel, as well as the Construction Official, Zoning Officer, Director of Public Works, engineer, or other Borough staff or designees to determine whether the issuance of a permit is in conformity with the applicable provisions of this article. Administrative permit issuance is nondiscretionary and based on whether an application is in conformity with the provisions of this article, as well as any other applicable local, state and federal laws and regulations governing small cell deployment. This process does not involve the exercise of discretion.

ANTENNA

Communications equipment that transmits and/or receives over-the-air electromagnetic signals used in the provision of wireless services. This definition does not apply to broadcast antennas, antennas designed for amateur radio use, or satellite dishes for residential or household purposes.

APPLICABLE CODES

Uniform building, fire, safety, electrical, plumbing, or mechanical codes adopted by a recognized national code organization to the extent such codes have been adopted by the Borough or otherwise are applicable in the jurisdiction.

APPLICANT

A person or entity who submits an application under this article.

APPLICATION

A written request submitted by an applicant to the Borough for a permit i) to locate or co-locate, or to modify, a communications facility underground or on any existing support structure, pole, or tower, or ii) to construct, modify or replace a new support structure, pole or tower or any other structure on which a communications facility will be co-located.

BOROUGH

The Borough of Palisades Park, or any agency, department, district, subdivision or any instrumentality thereof, including, but not limited to public utility districts, or municipal electric utilities. The term shall not include courts of the state having jurisdiction over the Borough or any entities that do not have zoning or permitting authority or jurisdiction. The Borough may hereinafter be referred to as the "Borough," "the Borough of Palisades Park," "Palisades Park" or "the Borough."

BOROUGH POLE

A pole owned, managed or operated by or on behalf of the Borough.

CO-LOCATE

To install, mount, maintain, modify, operate and/or replace a communications facility on an existing support structure, pole, or tower or any other structure capable of supporting such communications facility. "Co-location" has a corresponding meaning. The term does not include the installation of a new utility pole, tower or support structure in the public right-of-way.

COMMUNICATIONS FACILITY

Collectively, the equipment at a fixed location or locations that enables communication between user equipment and a communications network, including: i) radio transceivers, antennas, coaxial, fiber-optic or other cabling, power supply (including backup battery), and comparable equipment, regardless of technological configuration; and ii) all other equipment associated with any of the foregoing. A communications facility does not include the pole, tower or support structure to which the equipment is attached.

COMMUNICATIONS SERVICE PROVIDER

A cable operator, as defined in 47 U.S.C. § 522(5), a provider of information service, as defined in 47 U.S.C. § 153(24); or a provider of telecommunications service, as defined in 47 U.S.C. § 153(53); or provider of fixed wireless or other wireless services as defined in 47 U.S.C. § 332(c)(7)(C)(i).

CONTRACT FOR PROFESSIONAL SERVICES

A contract through which the Borough has entered into an arrangement with an individual, attorney consultant or firm for same to provide professional consulting services pursuant to this article, said contract being in conformance with New Jersey Public Contracts Law, Pay-to-Play Laws and other applicable laws governing such contracts and agreements.

DECORATIVE POLE

A Borough pole that is specially designed and placed for aesthetic purposes.

DEPLOYABLE

A portable, self-contained wireless facility that can be moved to a specified location or area and provide wireless services on a temporary or emergency basis such as a "cell on wheels" or "COW," "cell on light truck" or "COLT," tethered balloon, tethered drone or other unmanned device.

DESIGNEE

A consultant appointed by the Borough and contracted for professional services to serve as the point-of-contact and primary consultant and specialist for the Borough for all matters concerning this article.

DISCRETIONARY REVIEW

Review of an application by the Borough relating to the review and issuance of a permit, that is other than an administrative review. Discretionary review involves discretion on the part of the Borough (subject to any applicable limits on such discretion) in determining whether to issue a permit and may be subject to one or more public hearings or meetings, including appearances before the Planning Board, Zoning Board of Adjustment and referral to the Historic Preservation Commission for commentary and recommendations.

ELIGIBLE FACILITIES REQUEST

An eligible facilities request as set forth in 47 C.F.R. 1.6100(b)(3), as may be amended from time to time.

FCC

The Federal Communications Commission of the United States.

FEE

A one-time, nonrecurring charge, whether a fixed amount or cost-based amount based on time and expense.

HISTORIC PROPERTY

Any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register maintained by the United States Secretary of the Interior (in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic Agreement codified at 47 C.F.R. Part 1, Appendix C) or established pursuant to state historic preservation law.

LAWS

Collectively, any and all federal, state, or local law, statute, common law, code, rule, regulation, order, or ordinance.

OCCUPANT

Any occupant of the public right-of-way, including any wireless provider, wireless infrastructure provider, utility company, or public or private entity with a physical presence or right to maintain a physical presence on, under or across the public right-of-way.

ORDINARY MAINTENANCE, REPAIR AND REPLACEMENT

Means: i) with respect to a communications facility and/or the associated support structure, pole or tower, inspections, testing, repair and modifications that maintain functional capacity, aesthetic and structural integrity, and (ii) with respect to a communications facility only, the replacement or upgrade of antennas and/or other components of the communications facility (specifically, such as a swap out or addition of small cell antennas and radio equipment as required by the applicant), with antennas and/or other components substantially similar, in color, aggregate size and other aesthetics to that previously permitted by the Borough (and/or consistent with the same height and volume limits for wireless facilities under this article), so long as the support structure, pole, or tower will structurally support, or prior to installation will be modified to support, the structural load. Modifications are limited to by the structural load analysis supplied by the applicant to the Borough, and by the volume limits in § 300-84H, Design Standards. Modifications beyond the foregoing must be requested in writing by the applicant and are subject to discretionary review by the Borough.

PERMIT

A written authorization (in electronic or hard copy format) required by the Borough to initiate, continue, or complete installation of a communications facility, or an associated support structure, pole, or tower.

PERSON

An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the Borough.

POLE

A pole, such as a utility, lighting, traffic, or similar pole, made of wood, concrete, metal or other material, located or to be located within the public right-of-way or utility easement. The term includes the vertical support structure for traffic lights but does not include a horizontal structure to which signal lights or other traffic control devices are attached unless the Borough grants a waiver for such pole. The term does not include electric transmission poles or structures. A pole does not include a tower or support structure.

PROVIDER

A communications service provider or a wireless provider.

PUBLIC RIGHT-OF-WAY, PUBLIC ROW or MUNICIPAL ROW

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, but not including a federal interstate highway or other area not within the legal jurisdiction, or within the legal ownership or control of the municipality.

RATE

A recurring charge.

REPLACE or REPLACEMENT

In connection with an existing pole, support structure or tower, or communications facility, as the case may be, to replace (or the replacement of) same with a new structure, similar in design, size and scale to the existing structure and in conformance with current Borough building code, zoning provisions and other applicable regulations, in order to address limitations of, or change requirements applicable to, the existing structure to structurally support co-location of a communications facility. In connection with replacement of a pole or tower to support co-location of a wireless facility, similarity in size and scale shall be evaluated consistent with 47 C.F.R. 1.6100 (b)(7).

SMALL WIRELESS FACILITY

A wireless facility that meets both of the following qualifications: i) each wireless provider's antenna (including, without limitation, any strand-mounted antenna) could fit within an enclosure of no more than three cubic feet in volume; and ii) all other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated, ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for connection of power and other services. The following additional parameters apply to small wireless facilities: i) total height of small wireless facility and supporting structure is less than 50 feet, or the small wireless facility is mounted on structures no more than 10% taller than adjacent structures, or the small wireless facility does not extend the existing structure to a height of greater than 50 feet or by more than 10% of the original height, whichever is greater.

STATE

The State of New Jersey.

SUPPORT STRUCTURE

A building, a billboard, a water tank or any other structure to which a communications facility is or may be attached. "Support structure" does not include a pole or a tower.

TOWER

Any structure built for the sole or primary purpose of supporting a wireless facility, such as a self-supporting tower, a monopole, a lattice tower or a guyed tower. Tower also includes a structure designed to conceal from the general public the wireless facility. A tower does not include a pole or a support structure.

UTILITY EASEMENT

The area on, below, or above privately owned property that has been designated for use as or is used for a specific utility purpose (such as for electric, cable or other utility purpose), and is evidenced by a recorded instrument in the public land records pursuant to a recorded plat, easement or right-of-way or is otherwise a legally enforceable easement, and does not include any portion of a public right-of-way.

WIRELESS FACILITY

A communications facility installed and/or operated by a wireless provider. The term does not include: (i) the support structure, tower or pole on, under, or within which the equipment is located or co-located; or (ii) coaxial, fiber-optic or other cabling that is between communications facilities or poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna. A small wireless facility is one example of a wireless facility.

WIRELESS INFRASTRUCTURE PROVIDER

Any person, including a person authorized to provide telecommunications service in the state, that builds or installs and/or operates wireless facilities or poles, towers or support structures on which wireless facilities are or are intended to be used for co-location, but that is not a wireless services provider.

WIRELESS PROVIDER

A wireless infrastructure provider or a wireless services provider.

WIRELESS SERVICES

Any wireless services including, without limitation, personal wireless services as that term is defined in 47 U.S.C. § 332(c)(7)(C)(i), fixed wireless and other wireless services.

WIRELESS SERVICES PROVIDER

A person who provides wireless services.

General provisions of agreement for access to the public ROW.

(1)

Applicability. Except as otherwise provided herein, the placement, installation, modification, replacement, repair and upgrade of any communications facilities, including small wireless facilities, as well as the associated poles, towers or support structures, in the public right-of-way shall be governed by this article.

(2)

Notice prior to any non-emergency work.

(a)

The designee will serve as the initial point of contact for the Borough for all matters pertaining to this article.

(b)

No action, application, installation, upgrade, maintenance, repair, replacement or modifications by the applicant contemplated by this article shall be commenced without first giving notice to the Borough designee.

(c)

This notice requirement pertains to all work, including ordinary maintenance, repairs, upgrades and like-for-like equipment swap-outs.

(3)

Municipal agreement. Prior to receiving a permit to install a communications facility in the public ROW, each applicant shall be required to enter into a municipal agreement (e.g., right-of-way access agreement, pole attachment agreement, license agreement) between the Borough and the applicant, on terms and conditions substantially the same for all applicants and existing occupants of the public ROW. The terms and conditions of such municipal agreement will include the following:

(a)

Fees and rates. As consideration to the Borough for entering into the municipal agreement and also as a condition precedent for the issuance of any required permits and approvals to install the applicable communications facilities in the public right-of-way, the applicant shall pay the required fees and rates as set forth in Schedule A of this article, and which may be amended or modified from time to time per revision and modification to local, state and federal laws and regulations. Said fees shall include application or one-time fees and recurring right-of-way occupancy rates.

(b)

The small cell permit application escrow, as described in Schedule A, shall be paid upon submission of an application and shall be held in escrow and billed against actual incurred one-time fees and costs to process an application, also as described below and in Schedule A of this article. If said small cell permit application escrow is insufficient to cover incurred one-time fees as described below and in Schedule A, then the applicant shall submit an additional amount equal to the initial small cell permit application escrow to be further billed against incurred one-time fees and costs.

[1]

Reasonable approximation: All one-time event fees will be a reasonable approximation of objectively reasonable costs.

[2]

One-time fees apply to all work: One-time fees and event fees apply to the initial installation of facilities as well as to any subsequent upgrade, replacement, modification or alteration of same, with each instance of an upgrade or repair being a separate project subject to one-time fees. Maintenance and repair work on an existing communications facility does not trigger any one-time fees.

[a]

Annual ROW occupancy rate shall be as specified in Schedule A of this article and shall be paid within 30 days of the issuance of the applicable permit and annually thereafter, with payment being due on the anniversary of the first payment date for the balance of the Term. However, under no circumstances shall the rate be remitted later than 90 days after the full execution of the applicable municipal agreement between the Borough and the applicant.

[b]

Annual attachment rate, equal to an amount that represents a reasonable approximation of the objectively reasonable costs incurred by the Borough for the attachment of each small wireless facility to Borough-owned structures in the public right-of-way. This amount shall be paid within 30 days of issuance of the applicable permit(s) and annually thereafter. The annual rates in § 300-84A(3)(b)[2][a] and [b] combined shall not exceed $270 annually per small wireless facility location.

[c]

All fees and rates will be applied in a nondiscriminatory manner to all communications service providers.

[d]

The make-ready fee shall be determined on a site-specific, engineering basis, for work reasonably necessary to make a particular Borough pole suitable for attachment of the applicable communications facility shall be paid upon submission of the application as more particularly described in § 300-84C below.

(4)

Other terms.

(a)

Term. Unless otherwise agreed to in writing by the Borough and applicant, the agreement term shall be 10 years.

(b)

Safety and accessibility. The applicant will demonstrate compliance with applicable safety and accessibility requirements, including those under Americans with Disabilities Act ("ADA"), OSHA and similar laws.

(c)

The municipal agreement shall include, as an appendix thereof, a schedule containing the location of all proposed small wireless facilities in the public right-of-way, which the Borough and applicant may update as necessary without the need for additional review. Said locations shall be as specific as possible and shall include, but not be limited to, latitude, longitude, the nearest proximate address, cross streets as well as lot and block numbers, if available. Applicants shall also provide for inclusion in the municipal agreement information indicating the horizontal and approximate vertical location, relative to the boundaries of the public ROW, of all equipment which it owns or over which it has control and which is located in any public right-of-way.

(d)

Indemnification and insurance requirements.

[1]

Insurance. The applicant shall at all times maintain a commercial general liability insurance policy with a single amount of at least $1,000,000 per occurrence and in the aggregate covering liability for any death, personal injury, property damage or other liability arising out of the construction and operation contemplated herein, and an excess liability policy (or "umbrella") policy in the amount of $5,000,000 per occurrence and in the aggregate. The applicant may use any combination of primary and excess insurance to meet the total limits required. Such coverage shall be primary, noncontributory and shall contain a waiver of subrogation. Evidence of same shall be provided prior to the commencement of any work of any kind by the applicant. Prior to the commencement of any work pursuant to this agreement, the applicant shall file with the Borough a certificate(s) of insurance with any required endorsements evidencing the coverage provided by said liability and excess liability policies. The Borough shall notify the applicant within 15 days after the receipt of any claim or demand to the Borough, either by suit or otherwise, made against the Borough on account of any of applicant or its subcontractors, agents, employees, officers, servants, designees, guests and invitees, activities pursuant to the rights granted in this agreement. The applicant shall notify the Borough Clerk within 15 days of receipt of any claim or demand of the applicant or its subcontractors, agents, employees, officer, servants, designees, guests or invitees by any aggrieved party for any work or action made pursuant to this article.

[2]

Indemnification. The applicant, its successors, assigns, contractors, subcontractors, agents, servants, officers, employees, designees, guests and invitees, hereby indemnify, defend and hold harmless the Borough, its successors and assigns, elected officials, officers, employees, servants, contractors, designees and invitees from and against any and all personal injury and property damage claims, demands, suits, actions at law or equity or otherwise, or related judgments, arbitration determinations, damages, liabilities, decrees of any person(s) or entities claiming to be or being harmed as a result of the applicant's actions under this agreement and costs in connection therewith except to the extent that such claims, demands, suits, or actions are the result of the negligence or willful misconduct of the Borough, its successors, assigns, elected officials, officers, employees, servants, contractors, designees or invitees. This indemnification shall specifically include, but not be limited to, any and all costs, reasonable attorneys' fees, court costs and any other expenses that may be incurred by the Borough in connection with any and all claims, demands, suits, actions at law or equity or otherwise and/or arbitration proceedings which may arise in connection with the applicant's activities pursuant to the rights granted in this agreement. This indemnification shall also specifically include that the Borough retains the right to choose its own defense counsel in regard to any action at law or equity pursuant to this article.

(e)

Reliable 24/7 emergency notification contact information will be provided by the applicant to the Borough and incorporated into the agreement.

(f)

Additional agreement terms: Additional terms, such as for termination, assignment and sublicensing rights, shall be as negotiated between the applicant and Borough.

(g)

Nondiscriminatory. Applications will be processed on a nondiscriminatory basis.

Permitted communications facility uses/administrative review; application.

(1)

Permitted use. The following uses within the public ROW shall be a permitted use, subject to the entering into of a municipal agreement between the applicant and Borough as set forth in § 300-84A(3) above, and administrative review and the issuance of a permit as set forth in this § 300-84B. All such uses shall be in accordance with all other applicable provisions of this article, including without limitation, those set forth in § 300-84E.

(a)

Co-location of a small wireless facility.

(b)

Co-location that qualifies as an eligible facilities request.

(c)

Modification of a pole, tower or support structure or replacement of a pole, for co-location of a communications facility that qualifies as an eligible facilities request or involves a small wireless facility that does not exceed the maximum limitations set forth in Subsection C(3)(a)[1][a] below.

(d)

Construction of a new pole or a monopole tower (but no other type of tower) to be used for co-location of a small wireless facility that does not exceed the maximum height and other applicable design standards set forth in this article.

(e)

Construction of a communications facility, other than those set forth in in this Subsection B(1)(a), (b) or (c) involving the installation of coaxial, fiber-optic or other cabling, that is installed underground (direct buried or in conduit) or aboveground between two or more poles or a pole and a tower and/or support structure, and related equipment and appurtenances.

(f)

Ordinary maintenance, including any upgrade, repair, replacement, modification or alteration of a communications facility, with each upgrade, maintenance or repair being a separate instance subject to administrative review.

(g)

The Borough reserves and retains the right to subject any installation or modification contemplated in this article as well as in this article to discretionary review subject to the sixty- and ninety-day shot clock guidelines of FCC-18-133A. This may include public hearings and zoning board of adjustment approval. The shot clock guidelines will be adhered to for discretionary reviews unless compelling and extraordinary circumstances suggest otherwise.

(h)

All other installations, modifications and replacements not subject to administrative review and that do not qualify as a permitted use are subject to discretionary review under Chapter 167, Land Use and Development Regulations, as described in Subsection D of this article.

(2)

Permit required. No person shall place any facility described in Subsection B(1) above in the public ROW without first filing an application for same and obtaining a permit thereof, except as otherwise expressly provided in this article.

(3)

Proprietary or confidential information in application. The Borough shall make accepted applications publicly available by reasonably available means such as a request pursuant to the Open Public Records Act ("OPRA"). Notwithstanding the foregoing, the applicant may designate portions of its application materials that it reasonably believes contain proprietary or confidential information as "proprietary" or "confidential" by clearly marking each portion of such materials accordingly, and the Borough shall treat the information as proprietary and confidential, subject to applicable state and local "freedom of information" or "sunshine" laws and the Borough's determination that the applicant's request for confidential or proprietary treatment of an application material is reasonable. Confidential and proprietary information shall not include any information which is by law, regulation, ordinance, OPRA procedure and regulations or this article, open and available for public inspection, including proposed communications facilities' site locations.

(4)

Administrative review application requirements. The application shall be made by the applicable provider or its duly authorized representative and shall contain the following:

(a)

The applicant's name, address, telephone number, and email address, including emergency contact information for the applicant.

(b)

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.

(c)

A general description of the proposed work and the purposes and intent of the proposed facility or facilities. The scope and detail of such description shall be appropriate to the nature and character of the physical work to be performed, with special emphasis on those matters likely to be affected or impacted by the physical work proposed.

(d)

Detailed construction drawings regarding the proposed facility, as required by the Uniform Construction Code of the State of New Jersey, or as otherwise stated and required under applicable Borough ordinances.

(e)

Demonstration of compliance with RF health and safety measures, as established by the TCA and FCC, via an RF Health and Safety Report. Applicant may utilize the RF Safety Reports provided in connection with the municipal agreement, as described in § 300-84B(4)(d) for its applications for administrative review and permit issuance.

(f)

Applicant shall demonstrate compliance with the § 300-84H design standards as they pertain to appearance, siting and height of the proposed communications facilities and their support poles, towers or other structures.

(g)

To the extent the proposed facility involves co-location on a pole, tower or support structure, a structural report performed by a qualified engineer evidencing that the pole, tower or support structure will structurally support the co-location (or that the pole, tower or support structure will be modified to meet structural requirements) in accordance with applicable codes.

(5)

Applicant shall demonstrate compliance with applicable environmental, historical and landmark laws, rules and regulations, including SHPO and NEPA approval, as needed or applicable, including obtaining any necessary permits and approvals from the appropriate local, state or federal department agency or other governing body.

(6)

Ordinary maintenance, repair and replacement. Ordinary maintenance and repairs may require administrative review and be subject to the provisions of Subsection A(2) and (3) of this article, including notification to the Borough designee of any proposed work, repairs, replacement and modification. This will include coordination with the Borough DPW and Police Department for necessary street closures and safety protocols, as well as the payment of any required fees required under § 300-84A(1) above.

(7)

Information updates. Any material change to information contained in an application shall be submitted in writing to the Borough within 30 days after the condition necessitating the change.

(8)

Application fees. Unless otherwise provided by applicable laws, all applications pursuant to this article shall be accompanied by the fees required under § 300-84A(3) above.

Action on administrative review applications.

(1)

Review of applications for administrative review. The Borough shall review the application in light of its conformity with applicable provisions of this article, and shall issue a permit on nondiscriminatory terms and conditions, subject to the following requirements:

(a)

The Borough must act consistent with the following shot clock dates:

[1]

Review of an application to co-locate a small wireless facility using an existing structure: 60 days.

[2]

Review of an application to co-locate a facility other than a small wireless facility using an existing structure: 90 days.

[3]

Review of an application to deploy a small wireless facility using a new structure: 90 days.

[4]

Review of an application to deploy a facility other than a small wireless facility using a new structure: 150 days.

(b)

Tolling period: Unless a written agreement between the applicant and the Borough provides otherwise, the tolling period for an application (if any) is as set forth in Subsection C(1)(b)[1] through [3] of this section.

[1]

For an initial application to deploy small wireless facilities, if the Borough notifies the applicant on or before the 10th day after submission that the application is materially incomplete, and clearly and specifically identifies the missing documents or information and the specific rule or regulation creating the obligation to submit such documents or information, the shot clock date calculation shall restart at zero on the date on which the applicant submits all the documents and information identified by the Borough to render the application complete.

[2]

For all other initial applications, the tolling period shall be the number of days from:

[a]

The day after the date when the Borough notifies the applicant in writing that the application is materially incomplete and clearly and specifically identifies the missing documents or information that the applicant must submit to render the application complete and the specific rule or regulation creating this obligation; until

[b]

The date when the applicant submits all the documents and information identified by the siting authority to render the application complete;

[c]

But only if the notice pursuant to § 300-84C(1)(b)[2][a] is effectuated on or before the 30th day after the date when the application was submitted; or

[3]

For resubmitted applications following a notice of deficiency, the tolling period shall be the number of days from:

[a]

The day after the date when the Borough notifies the applicant in writing that the applicant's supplemental submission was not sufficient to render the application complete and clearly and specifically identifies the missing documents or information that need to be submitted based on the Borough's original request under § 300-84C(2)(a)[1] or [2]; until

[b]

The date when the applicant submits all the documents and information identified by the Borough to render the application complete;

[c]

But only if the notice pursuant to § 300-84C(1)(b)[3][a] is effectuated on or before the 10th day after the date when the applicant makes a supplemental submission in response to the Borough's request under § 300-84C(1)(b) or (c).

(c)

The Borough must advise the applicant in writing of its final decision, and in the final decision document the basis for a denial, including referencing specific code provisions and/or regulations upon which the denial was based, including any federal law, or local or state laws and regulations, provided said local and state laws and regulations do not conflict with federal law. Denial may include lack of conformity with the Borough codes, ordinances and regulations, as well as local, state and federal environmental, landmark and historical regulations. A decision to deny an application shall be in writing and supported by clear evidence contained in a written record, publicly released, and sent to the applicant. The written decision, supported by such substantial evidence, shall constitute final action by the Borough. The review period or "shot clock" shall run until the written decision, supported by substantial evidence, is released and sent to the applicant contemporaneously. The subsequent review by the Borough shall be limited to the deficiencies cited in the original denial and any material changes to the application made to cure any identified deficiencies.

(2)

Undergrounding provisions. The Borough shall administer undergrounding provisions in a nondiscriminatory manner. It shall be the objective of the Borough and all public ROW occupants to minimize disruption or discontinuance of service of all kinds to consumers, through mutual obligation to coordinate and timely complete such projects. An occupant, including the applicant, as the case may be, shall comply with nondiscriminatory Borough undergrounding requirements that 1) are in place and published prior to the date of initial filing of the application, and 2) prohibit electric, telecommunications and cable providers from installing aboveground horizontal cables, poles, or equivalent vertical structures in the public ROW; and the Borough may require the removal of overhead cable and subsequently unused poles. In areas where existing aerial utilities are being moved underground, wireless providers shall retain the right to remain in place, under their existing authorization, by buying out the ownership of the pole(s), subject to the concurrence of the pole owner and consent of the Borough (which consent may not be unreasonably withheld, conditioned or delayed) or, alternatively, the wireless provider may reasonably replace the existing pole(s) or vertical structure locations for antennas and accessory equipment, as a permitted use, within 50 feet of the prior location, unless a minimally greater distance is necessary for compelling public welfare. In neighborhoods or areas with existing underground utilities that do not have small wireless facilities deployed as a permitted use, a new entrant wireless provider applying after utilities have been placed underground shall first seek existing vertical structure locations, if technically feasible for the wireless service to be deployed. To the degree such vertical structures are not available, and upon receiving an approved permit, the applicant shall be entitled to place poles or vertical structures as necessary to provide the wireless service using vertical structures commensurate with other vertical structures in the neighboring underground utility area. In neighborhoods or areas with existing underground utilities that do have small wireless facilities deployed as a permitted use, a new entrant wireless provider applying after utilities have been placed underground shall first seek existing vertical structure locations, if technically feasible for the wireless service to be deployed. To the degree such vertical structures are not available, and upon receiving an approved permit, the applicant shall be entitled to place poles or vertical structures as necessary to provide the wireless service using vertical structures commensurate with other vertical structures of wireless providers in the neighboring underground utility area. In neighborhoods with underground utilities, whether being converted from overhead utilities or initially underground, microwireless devices, typically strand-mounted, shall be treated like other small wireless facilities in the public ROW, requiring permitted use status, and subject to nonrecurring and recurring fees and rates.

(3)

Effect of permit.

(a)

Authority granted; no property right or other interest created. A permit from the Borough authorizes an applicant to undertake only certain activities in accordance with this article, and does not create a property right or grant Borough to the applicant to impinge upon the rights of others who may already have an interest in the public ROW.

(b)

Duration. Any permit for construction issued under this article shall be valid for a period of six months after issuance, provided that the six-month period shall be extended for up to an additional six months upon written request of the applicant (made prior to the end of the initial six-month period if the failure to complete construction is delayed as a result of circumstances beyond the reasonable control of the applicant).

(4)

Removal, relocation or modification of a communications facility in the ROW.

(a)

Notice. Within 90 days following written notice from the Borough, a provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any communications facility within the public ROW whenever the Borough has determined that such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any Borough improvement in or upon, or the operations of the Borough in or upon, the public ROW, or pursuant to any redevelopment plan made pursuant to the Municipal Land Use Law contained in N.J.S.A. 40:55D, or any Council resolution that approves any redevelopment plan for work that is performed by a private company other than the Borough. The Borough shall apply the same standards to all utilities in the public ROW.

(b)

Emergency removal or relocation of facilities. The Borough retains the right and privilege to cut power to or move any communications facility located within the public ROW of the Borough, as the Borough may determine to be necessary, appropriate or useful in response to any public welfare emergency or safety emergency. If circumstances permit, the Borough shall notify the provider and provide the provider an opportunity to move its own facilities prior to cutting power to or removing the communications facility and in all cases shall notify the provider after cutting power to or removing the communications facility as promptly as reasonably possible.

(c)

Structural reconditioning, repair and replacement. From time to time, the Borough may paint, recondition, or otherwise improve or repair the Borough poles in a substantial way ("reconditioning work"). The provider shall reasonably cooperate with the Borough to carry out reconditioning work activities in a manner that minimizes interference with the provider's approved use of the facility.

[1]

Prior to commencing reconditioning work, the Borough will use reasonable efforts to provide the provider with at least 60 days' prior written notice. Upon receiving that notice, it shall be the provider's sole responsibility to provide adequate measures to cover, remove, or otherwise protect the provider's communications facility from the consequences of the reconditioning work, including but not limited to paint and debris fallout. The Borough reserves the right to require the provider to remove all of the provider's communications facility from the Borough pole and surrounding premises during reconditioning work, provided the requirement to remove same is contained in the written notice required by this subsection. All cost associated with the protection measures, including temporary removal, shall be the sole responsibility of the provider. The Borough will provide the provider with a date by which its equipment must be protected or removed. The provider may request a modification of the Borough procedures for carrying out reconditioning work in order to reduce the interference with provider's operation of its communications facility. If the Borough agrees to the modification, the provider shall be responsible for all reasonable incremental cost related to the modification.

[2]

If the Borough poles need to be replaced ("replacement work"), the Borough shall provide provider with at least 60 days' written notice to remove its communications facilities. The Borough shall also promptly notify provider when the Borough poles have been replaced and provider may re-install its equipment. During the replacement work, the provider may maintain a temporary communications facility on the property, or after approval by Borough, on any land owned or controlled by Borough, in the vicinity of the property. If the property will not accommodate the provider's temporary communications facility or if the parties cannot agree on a temporary location, the provider, at its sole option, shall have the right to suspend the applicable permit, until the replacement pole is installed, upon 30 days' written notice to the Borough.

[3]

If the Borough poles need to be repaired due to storm or other damage ("repair work"), the Borough shall notify the provider to remove its communications facilities as soon as possible. In the event of an emergency, the Borough shall contact the provider by telephone at its emergency contact of record upon or prior to removing the provider's equipment. Once the Borough poles have been replaced or repaired, the Borough will promptly notify the provider that it can reinstall its equipment. During Borough repair work, the provider may maintain a temporary communications facility on the property, or after approval by provider, on any land owned or controlled by the Borough in the vicinity of the property. All cost associated with any removal or protection of communications facilities shall be the sole responsibility of the provider, except to the extent caused by third-parties or the Borough.

(5)

Attachment to Borough poles in the public ROW.

(a)

Make-ready. For any attachment to Borough poles in the public ROW, the Borough shall provide a good faith estimate for any make-ready work necessary to enable the Borough pole to support the proposed facility, including replacement of the pole if necessary, within 60 days after receipt of a completed application requesting attachment to the Borough pole, unless a longer period is required in order to comply with New Jersey law, including, but not limited to, Local Public Contracts Law ("LPCL") and the New Jersey Local Unit Pay to Play. Make-ready work including any pole replacement shall be completed within 120 days of written acceptance of the good faith estimate by the provider. Borough will make all reasonable estimates to complete the work within the stated time frames. Such acceptance shall be signified by payment via check or other commercially reasonable and customary means specified by the Borough. If Borough does not indicate it is willing to perform the make-ready work within the 60 days after receipt of a completed application requesting attachment to the Borough pole, the applicant may perform the work itself consistent with Borough approval under this article.

Applications requiring discretionary review and approval.

(1)

Discretionary review required. All other uses not expressly set forth or referenced in Subsection B(1) above shall require compliance with applicable Borough ordinance, including, but not limited to, Chapter 300, Telecommunications Antennas and Towers[1] and the district zoning regulations and any other applicable laws and ordinances of the Borough.

[1]

Editor's Note: So in original.

Other public ROW installation requirements.

(1)

General principles.

(a)

The Borough shall have the power to establish reasonable and nondiscriminatory limitations on the placement of new or additional facilities within specific congested segments of the public ROW if there is insufficient space to accommodate all of the requests of applicants or other persons to occupy and use the public ROW. In making such decisions, the Borough shall to the extent possible accommodate all existing users and potential users (i.e., those who have submitted an application to deploy facilities within the public ROW) of the public ROW, and shall be guided primarily by considerations of the public interest, the width and physical condition of the public ROW, the time of year with respect to essential utilities, the protection of existing facilities in the public ROW and established plans for public improvements and development projects which have been determined to be in the public's interest.

[1]

Fewest possible new poles/use of existing poles: applicant shall use existing poles when possible for the placement of its small wireless facilities and shall minimize the number of new proposed poles in the right-of-way to the fewest possible to meet the coverage and capacity requirements.

(b)

Leasing of excess space in ducts, conduits and on a pole is a matter between interested parties (subject to any applicable pole attachment regulations and any other applicable statutory, regulatory or contractual obligations); however, lessees or licensees of such physical facilities must still comply with the terms of this article, unless otherwise expressly exempted by the Borough.

(c)

An occupant of the public ROW shall employ due care during the installation and maintenance process, and comply with all safety and public-ROW-protection requirements of applicable federal, state and local laws (and any generally applicable Borough guidelines, standards and practices), and any additional commonly accepted safety and public-ROW- protection standards, methods and devices (to the extent not inconsistent with applicable laws). All facilities under the streets of the Borough shall be kept and maintained in a safe and well-ordered condition, and in good order and repair.

[1]

Any permittee occupying any portion of the public ROW shall erect a barrier around the perimeter of any excavation and provide any and all traffic-control devices, signs and lights appropriate to the level of complexity of the activity in order to protect, warn and guide the public (vehicular and pedestrian) through the work zone. The manner and use of these devices shall be described within a traffic control plan in accordance with the Manual on Uniform Traffic Control Devices, and existing procedures, including the Borough work site evaluation process by which the construction office refers proposed work to the police department in order to develop safety measures to safeguard pedestrian and vehicular traffic as well as property. In the event of any conflict between the provisions of this subsection and the work site evaluation process, the work site evaluation procedures shall control.

[2]

Occupants of the public ROW with open excavations awaiting final restoration shall maintain all devices until the Borough notifies the occupant in writing that the Borough or the Borough's designated contractor is assuming responsibility for traffic control.

[3]

Each occupant shall designate a safety officer. The safety officer shall be responsible for safety-related issues affecting both the public and the occupant's field employees and contractors for all job sites within the public ROW.

(d)

Location of existing facilities.

[1]

An occupant of the public ROW shall not place any fixtures or equipment where the same will interfere with any existing facility, and shall locate its lines and equipment in such a manner as not to interfere unnecessarily with the usual traffic patterns (vehicular or pedestrian) or with the rights or reasonable convenience of owners of property that abuts any public ROW.

[2]

In the event that the Borough notifies the occupant in advance that it is expressly interested in sharing the trenches or bores at a specific location area where construction is occurring, then the occupant shall allow the Borough to place its infrastructure in the occupant's trenches and bores as requested by the Borough. In these instances, the Borough will bear an incremental share of the costs of trenching, boring and the placement of conduit and infrastructure.

[3]

Before beginning excavation in any public ROW, an occupant shall contact the regional notification center for subsurface installations (One-Number Locator Service) to determine possible conflicts.

(e)

Abandonment of facilities.

[1]

Any occupant of the public ROW, including any applicant, wireless provider or wireless infrastructure provider, that intends to permanently discontinue use of any facilities within the public ROW shall notify the Borough in writing within 30 days prior to abandonment. Such notice shall describe the facilities for which the use is to be discontinued, and the date of discontinuance of use. Upon notification, at its discretion, the Borough will choose from the following options within 14 days or any other agreed upon option, and so notify the occupant of its decision:

[a]

Abandon the facilities in place and the occupant shall further convey full title and ownership of such abandoned facilities to the Borough. The occupant is responsible for all obligations of the facilities, or other associated liabilities until the conveyance to the Borough is completed; or

[b]

The facilities shall be removed and the occupant shall be liable for removing the facilities at its own cost. If an occupant fails to remove facilities that the Borough requires it to remove, after 90 days' notice to the occupant, the Borough may perform the work and shall be entitled to collect the cost from the occupant its successors and/or assigns.

(2)

Additional requirements.

(a)

General. All deployments of communications facilities in the public ROW shall comply with the following:

[1]

Compliance with ADA and other applicable federal, state and local laws and standards.

[2]

Pedestrian and vehicular traffic and safety requirements established by the Borough.

[3]

Existing public ROW occupancy or management ordinances, not otherwise inconsistent with this article.

(b)

Additional permits. In addition to obtaining a permit for installation of a communications facility in the public ROW, an applicant must obtain the following additional permits and approvals, as well as provide notice where indicated:

[1]

Notification to Borough designee for all work contemplated in this article, pursuant to Subsection A.

[2]

Construction permit (including building and electrical subcodes), per statutory fees established by uniform construction code regulations contained in N.J.A.C. 5:23.

[3]

Zoning permit, as applicable, per this article and the applicable provisions of the Borough land use regulations.

[4]

Street opening permit, if applicable, per Borough code Chapter 258, Streets and Sidewalks.

[5]

Telecommunications consultation and review performed by the Borough designee or other such official of the Borough or professional contracted by the Borough, to include permit review, construction oversight for code and zoning compliance and post-installation inspection to ensure compliance with the technical specifications.

[6]

Engineering review by an outside consultant, as needed.

[7]

Discretionary review: For small wireless facilities applications not subject to administrative review pursuant to this article.

(3)

Existing utility easements in the public right-of-way.

(a)

Applicants will work with the Borough engineer to coordinate and protect existing utilities in the public ROW.

(b)

Applicants will coordinate with the Borough engineer all public safety considerations prior to and during installation in the public ROW to ensure public safety response in the case of gas line, water line or electric Borough disturbance.

Attachment to and replacement of decorative poles. Notwithstanding anything to the contrary in this article, the Borough may request that applicant install a small wireless facility on a new decorative pole, or replace an existing decorative pole with a new decorative pole that is in keeping with the aesthetics of the existing decorative pole or the surrounding streetscape only upon satisfaction of the following additional requirements:

(1)

Issuance of a permit under Subsection B(1) above.

(2)

The new decorative pole, small wireless facilities attachment and/or the replacement decorative pole is in keeping with the aesthetics of the decorative pole and surrounding streetscape in the judgement of the Borough.

Batch applications. An applicant seeking to construct, modify or replace a network of communications facilities may, at the applicant's discretion and subject to the Borough's approval, batch application requirements and file a consolidated application and receive multiple permits or a single permit for multiple communications facilities. The Borough's denial of any site or sites within a consolidated application shall not affect other sites submitted in the same application. The Borough shall grant a permit(s) for any and all sites in a consolidated application that it does not otherwise deny, subject to the requirements of this article.

Design standards. All aboveground communications facilities in the public ROW requiring administrative review only shall conform to the following nondiscriminatory design guidelines generally applicable to all facilities in the public ROW:

(1)

Siting and design requirements:

(a)

Pole siting standards. New poles for use as support structures for small wireless facilities shall conform to the following siting standards:

[1]

Height. No proposed pole shall be taller than 50 feet or 110% of the height of poles in the surrounding streetscape, whichever is higher.

[2]

Location, safety and aesthetics. No proposed pole shall be erected in the right-of-way unless it:

[a]

Is approved pursuant to the provisions of this article;

[b]

Replaces an existing pole; or

[c]

Does not inhibit any existing sight triangles or sight distances; and

[d]

Allows adequate room for the public to pass and repass across, along and through the right-of-way; and

[e]

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;

[f]

Is compliant with Chapter 258, Streets and Sidewalks, of the Borough Code as well as any applicable local and state laws and regulations pertaining to the installation of utility poles in the right-of-way, including promulgated by the Board of Public Utilities requiring approval of proposed locations prior to installation.

(b)

Ground-level cabinet siting standards. Ground-level cabinets shall conform to the following siting standards:

[1]

Ground-level cabinets are prohibited in the public right-of-way in residential zones and any future residential zones;

[2]

Ground-level cabinets are permitted in nonresidential zones provided that such ground-level cabinet;

[3]

Is less than 28 cubic feet in volume;

[4]

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;

[5]

Does not inhibit any existing sight triangles or sight distance; and

[6]

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.

(d)

Pole-mounted antennas are permitted on existing poles, provided that each pole-mounted antenna:

[1]

Does not exceed three cubic feet in volume; and

[2]

[3]

Does not inhibit any sight triangles or sight distance; and

[4]

Allows adequate room for the public to pass and repass across, along and through the public right-of-way.

[5]

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]

[c]

Does not inhibit any sight triangles or sight distance; and

[d]

Allows adequate room for the public to pass and repass across the public right-of-way.

(2)

Maximum height requirements.

(a)

Maximum size of permitted use. Small wireless facilities, and new, modified or replacement poles, towers and support structures (subject to the further limitation for replacement of support structures described in § 300-83C above) to be used for co-location of small wireless facilities may be placed in the public right-of-way as a permitted use in accordance with this Subsection H, subject to the following requirements:

[1]

Each new, modified or replacement pole, tower or support structure installed in the public ROW shall not exceed the greater of:

[a]

Five feet above the tallest existing pole, tower or support structure not exceeding 50 feet in the public ROW, in place as of the effective date of this article, and located within 500 feet of the new proposed pole, support structure; or 10 feet on utility distribution poles where required by the electrical utility separation requirements; or

[b]

Fifty feet above ground level.

[2]

Each modified or replacement pole, tower, or support structure installed in the public ROW shall not exceed the greater of:

[a]

Five feet above the height of the structure being modified or replaced in place as of the effective date of this article; or 10 feet on utility distribution poles where required by the electrical utility separation requirements; or

[b]

The height limit under this § 300-84H(2)(a)[1].