[Chapter 29:28 was repealed and replaced 8-5-2020 by Ord. No. 6PSF-D, 08-05-2020. Prior history includes Ord. No. 6S+FF, 5-19-1999.]
[Added 8-5-2020 by Ord. No. 6PSF-D, 08-05-2020]
a. 
Template Street Use Agreement. The City Council may adopt an agreement template authorizing use and occupancy of the streets with communications facilities, which agreement shall satisfy the requirements of Section 29:5-6b. The Director is authorized, with the agreement of Corporation Counsel, and subject to any necessary action that may be required under state law, to execute an agreement with any person in substantially the form approved. Modifications that limit the scope of the grant are not considered substantial. No agreement shall relieve any person from the obligation to obtain all necessary permits and approvals including permits required under Section 29:28-2, and pay all applicable fees, required by applicable state, local, and federal law. No contract or permit given by the City under this chapter shall be interpreted to grant a person, an exclusive franchise, license, consent, permit, or final approval for access and use of the streets. Where a person seeks to provide video services, they must separately obtain a franchise as provided under state and local laws governing the provision of video services.
b. 
Application for Agreement. A person seeking to use and occupy any street in the City with a communications facility, shall submit an application to the Director, on forms adopted by the Director. The applicable forms will be on file with the Office of the City Clerk and may be amended or replaced at any time. In the absence of such form, submit a letter clearly requesting an agreement to for use and occupancy of the streets, identifying, at a minimum, the name of the applicant, status of the applicant (i.e. corporation, general partnership, limited partnership, etc.), the address in the state of domicile, and local address, if any; a copy of any authorization, if required by state law, necessary for the provider to act as a public utility according to the statutes of the State of New Jersey regulating public utilities; a detailed description of the proposed use of the streets, the type of services intended to be provided, and (if available) detailed maps and technical drawings of proposed installations. If the template agreement then in effect is acceptable to the applicant, it shall so indicate in their application; otherwise, a specific list of requested changes, with detailed explanations for each, shall be included with any application. If applicant claims that an application must be acted on within a specified period of time, it shall identify the period of time and the statute or regulation upon which the claim is based. Without limitation, in addition to any grounds the City may specify in its review of the application, if, by the date the City is required to act on an application, as that date may be extended, an agreement has not been signed by all parties, the application shall be deemed denied without prejudice for applicant's failure to timely enter into an agreement with the City.
c. 
Fees for Application. Each person seeking a franchise, license or consent to use the streets under this Title XXIX shall pay a deposit, in the amount of $5,000 to cover the City's initial costs in reviewing and processing the request. Payment shall be made by depositing $5,000 with the Department of Engineering with the initial application for agreement prescribed in subsection b of this section. The City may draw from the deposit account after providing the applicant written notice of the reasonable costs to paid from the account. Applicants shall be responsible for payment of such additional reasonable costs as the City may incur in reviewing the application. Such reasonable costs may include, but are not limited to, internal staff time, and reasonable costs associated with the retention of outside counsel and consultants to provide additional expertise where needed. In the event such additional expenses are required, the City shall so advise the applicant. Any outstanding amount shall be due upon final action on the application and must be paid prior to the City's execution of any franchise, license or consent under this Title XXIX. Any amounts not expended in the review, excluding a reasonable, estimated share of the City's costs in developing the agreement, shall upon written request to the City be returned to the applicant.
d. 
Processing of Application. Applications will be processed in accordance with applicable law and may be rejected if incomplete. Where an applicant is not willing to enter into the template agreement, the Director may deny the application, or recommend an alternative agreement to the City where applicant has shown good cause to the Director for modifying the agreement. Provided that applicant may be required to pay additional fees reflecting the costs to the City consistent with the provisions of subsection c of this section.
[Added 8-5-2020 by Ord. No. 6PSF-D, 08-05-2020]
The City of Newark will not grant rights and privileges to use the public right-of-way to any entity that is not authorized to do business in the State of New Jersey as evidenced by an original Certificate of Incorporation and/or a Certificate of Good Standing from the Secretary of the State of New Jersey.
[Added 8-5-2020 by Ord. No. 6PSF-D, 08-05-2020]
a. 
Director May Establish. The Director shall establish regulations regarding the installation of wireless and fiber optic or other telecommunications cable and materials and construction standards. Such standards shall be consistent with the provisions of this chapter, and shall reflect the City's ongoing desire to minimize obstruction, disruption or damage to the rights-of-way, and to make efficient use of the rights-of-way, minimizing impacts on the City and its residents, and to maximize the City's ability to deploy infrastructure for its own needs. Without limitation, the Director may establish regulations requiring coordination of construction within the streets, including requirements for joint trenching and for noticing open trenches, and may, subject to limitations in applicable law, require those constructing facilities to install facilities for City use. Consistent with applicable law, fees established by the Director may be established to take into account the benefits to the City of coordinated construction and the harms caused by uncoordinated construction.
b. 
Joint Application. An applicant and any person(s) on whose behalf work is to be performed, or who will own or control any portion of the communications facilities that will be installed pursuant to an authorization issued by the City, shall be jointly responsible for submitting all necessary information to the City and for ensuring the accuracy of any information submitted. Where a person seeks to use and occupy the streets with all or part of a wireless telecommunications facility; a supporting structure whose primary purpose is support of a wireless telecommunications facility; or where a person proposes to install communications facilities in the streets for the primary purpose of connecting to a wireless telecommunications facility, a joint application must be filed seeking appropriate consents to cover the entirety of the proposed work associated with the wireless communications facility, unless the Director determines that submission of separate applications will not adversely affect the ability of the City to appropriately regulate the placement, construction or modification of a wireless telecommunications facility and any associated supporting structure; or adversely affect the ability of the City to manage and to prevent disruption of the streets.
c. 
Waivers. Requests for waivers from any requirement of this chapter shall be made in writing to the Director. The Director may grant a request for waiver if the utility (or a contractor working for the utility) demonstrates to the Director that, notwithstanding the issuance of a waiver, the department will be provided all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the permit sought.
[Added 8-5-2020 by Ord. No. 6PSF-D, 08-05-2020]
a. 
Wireless Permits Required.
1. 
For purposes of this chapter, the terms "install" and/or "modify" shall be interpreted broadly to encompass any activity conducted with respect to a wireless telecommunications facility, or its supporting structure, including without limitation construction, excavation, site preparation, reinforcing, altering, reconfiguring, relocation, and replacement.
2. 
Except as provided in subsection a3, no person shall install or modify any wireless telecommunications facility, or its supporting structure without first obtaining a wireless permit as prescribed by this chapter.
3. 
The following work may be conducted without obtaining a wireless permit under this chapter:
(a) 
Work activity that makes no material change to the footprint of a wireless telecommunications facility or its supporting structure, or to the surface or subsurface of a street provided the activity does not change the visual or audible characteristics of a wireless telecommunications facility. The wireless telecommunications facilities manual may also exempt wireless telecommunications facilities that otherwise are subject to the provisions of this section from the obligation to obtain a wireless permit to install or modify a wireless telecommunications facility where it is determined that because of the physical characteristics of the facilities, and the work associated with them, such a permit is not required to protect the public health, welfare or safety, to maintain the character of a neighborhood or corridor, or to serve the purposes of this chapter.
(b) 
Work activity where wireless telecommunications facilities or their supporting structures are relocated or where certain maintenance and/or modifications must be accomplished in coordination with a street construction or maintenance project by the City, county or state transportation authorities that does not involve undergrounding utilities; however, the permit application system shall be used to notify the City of the work activity.
(c) 
Routine operation or maintenance activities involving underground facilities but that do not include the excavation of paved street surfaces or disrupt or impede traffic in the traveled portion of a street. Examples of this work include, but are not limited to, work in underground manholes, regulators, valves, splice vaults, regulator pits, leak survey, leak investigation and classification, pumping pits or vaults.
(d) 
Installation of temporary wireless facilities.
(e) 
The wireless telecommunications facilities manual may allow for installation of certain wireless telecommunications facilities on the strand between two utility poles without a wireless permit provided the exemption is limited to those cases where the appearance and cumulative volume of all wireless telecommunications facilities on the strand is comparable to other facilities commonly installed on strand; the facilities do not touch or interfere with other facilities or cause excessive strand saq.; and provided further that the installation does not require replacement of the strand, or excavation, modification or replacement of the utility poles, or placement of any part of the wireless telecommunications facility, other than a meter and disconnect, on the ground or on the supporting structure.
4. 
Receipt of a wireless permit under this chapter, or exemption from the obligation to obtain a wireless permit, shall not relieve a permittee of the obligation to obtain other permits under other provisions of the City Code, including other chapters of this Title, as may be required based on the specific nature of the work activity to be performed or the facility to be constructed or modified.
b. 
Compliance. Whether or not a wireless permit is required, every wireless telecommunications facility shall comply with general conditions for occupancy of the streets, as may be provided in the City Code or regulations and the wireless telecommunications facilities manual.
c. 
Revocation for RF Non-Compliance. City may deny an application for a wireless permit, revoke a permit, or require removal of a wireless telecommunications facility, or take any other action permitted under law if a wireless telecommunications facility is not in compliance with FCC regulations governing RF emissions.
d. 
Revocation for Interference or Hazard. City may deny an application for a wireless permit, revoke a permit, or require removal of a wireless telecommunications facility, or take any other action permitted under law if a wireless telecommunications facility would unduly interfere with the use of the streets by other persons, including other utilities; creates a health and safety hazard to persons or property; fails to comply with conditions of any wireless permit; or if it becomes, or as proposed presents, an undue risk of becoming a nuisance.
e. 
Wireless telecommunications facilities, placement standards, generally.
1. 
Wireless telecommunications facilities requiring a permit under this chapter shall meet the minimum requirements set forth in this chapter and the wireless telecommunications facilities manual.
2. 
The regulations in the wireless telecommunications facilities manual and decisions on applications for placement of wireless telecommunications facilities in the streets shall, at a minimum, ensure that the requirements of this section are satisfied, absent a showing that denial of an application would effectively prohibit the provision of personal wireless services as defined in 47 U.S.C. § 332(c)(7)(C)(I), or otherwise violate applicable laws or regulations such that the City is required to approve the application. If an applicant establishes that the City is required to approve the application, the requirements of this chapter and the wireless telecommunications facilities manual may be waived, but only to the minimum extent required to avoid the violation. Violations of applicable safety codes and requirements, including regulations governing RF emissions, may not be waived.
3. 
The placement of wireless telecommunications facilities shall be subject to such other rights as the City possesses with respect to the streets. Wireless telecommunications facilities shall be installed, where approved, in a manner that minimizes risks to public safety, where possible and practical, avoids placement of aboveground facilities in underground areas, avoids installation of new support structures or equipment cabinets in the streets and otherwise maintains the integrity and character of the neighborhoods and corridors in which the facilities are located; ensures that installations are subject to periodic review to minimize the intrusion on the streets; and ensures that the City bears no risk or liability as a result of the installations, and that such use does not incommode the public, interfere with the primary uses of the streets, or hinder the ability of the City or other government agencies to improve, modify, relocate, abandon or vacate the streets or any portion thereof, or to cause the improvement, modification, relocation, vacation or abandonment of facilities in the streets. All wireless telecommunications facilities shall be so located as to minimize interference with the proper use of public streets and other public ways and places, and to minimize interference with the rights or reasonable convenience of property owners who adjoin any of these public streets or other pre-existing utilities in the street.
4. 
Permits for wireless telecommunications facilities shall incorporate specific concealment elements to minimize visual impacts, and design requirements ensuring compliance with all standards for noise emissions, which permit shall be consistent with applicable requirements in the Wireless Telecommunications Facilities Manual.
f. 
Placement on City-Owned or Controlled Supporting Structures in Streets.
1. 
The City, as a matter of policy, will negotiate agreements for use of City-owned or controlled light standards and traffic signals in the streets, except for those structures where the City placement of a wireless facility would be inconsistent with the design goals for the structure, or otherwise interfere with, or create undue risks for the public, the City's use of the structure, or others authorized to use or service the structure. The placement of wireless telecommunications facilities on those structures shall be subject to the agreement and in addition will require a wireless permit. Specific placement standards may be included in the wireless telecommunications facilities manual. However, it is the intent of the City that absent specific findings that approval is required or in the public interest, it will only enter into an agreement if the design is consistent with the design of the facility to which it is to be attached or which it is to replace and minimizes the overall impact on the structure and its surroundings; does not detract or interfere with the governmental uses of the structures; and imposes no additional costs or liabilities on the City.
2. 
No permit and no agreement for use of city owned or controlled light standards and traffic signals shall be issued or effective unless it is shown that the wireless telecommunications facility will comply with Federal Communication Commission ("FCC") regulations governing radio frequency ("RF") emissions. Every wireless facility shall at all times comply with applicable FCC regulations governing RF emissions, and failure to comply shall be a treated as a material violation of the terms of any permit or lease.
3. 
Charges for use of City-owned or controlled structures under this section shall be established by the Director consistent with all applicable law, and may be updated from time to time in response to changes in law or policy, developments in the marketplace, or for any other reason in the Director's discretion.
[Added 8-5-2020 by Ord. No. 6PSF-D, 08-05-2020]
a. 
Submission. An application for a wireless permit or for use of a City-owned or controlled supporting structure in the streets shall be submitted in the format and manner specified in the relevant section of the wireless telecommunications facilities manual.
b. 
Fees. As part of the application, the applicant shall submit an initial fee and must agree to pay the costs incurred by the City in reviewing the application. Fees shall be set forth in the wireless telecommunications facilities manual or may be established in any other guidelines consistent with state law. Fees set forth in the wireless telecommunications facilities manual:
1. 
Shall be designed to recover the costs of the City in reviewing applications for wireless telecommunications facilities, including costs associated with outside consultants; and
2. 
Shall be reviewed periodically and may be increased or decreased based upon that review. The first review shall commence on or after the first anniversary of the effective date of this chapter.
c. 
Completeness. Permit application forms that are not complete or do not include required fees may be rejected. Otherwise, applications will be processed, and notices of incompleteness provided, in conformity with applicable law.
d. 
Detail. If the submittal of plans or other documents is required, the plans and/or documents shall be legible and of a scale that accurately and clearly presents the detail of the proposed work. Plans or documents not meeting these requirements may be rejected.
e. 
Historic District. All applications for installation of any equipment governed by this chapter that is in a Historic District, must comply with all federal, state and local laws regulating Historic Districts.
f. 
Action by Director. The Director may approve, conditionally approve, or deny an application for a permit.
g. 
Approval. If an application is approved or conditionally approved, a permit shall be issued to the applicant, subject to appeal as provided herein.
h. 
Conditions on Approval. If an application is conditionally approved, the Director may condition the permit with specified requirements that preserve and maintain the public health, safety, welfare, and convenience, and ensure compliance with provisions of this Code and applicable law.
i. 
Denial. An application may be denied if it does not comply with the requirements of the City Code, or of the wireless telecommunications facilities manual, or, in the case of supporting structures owned or controlled by the City, the City determines it is not in its interest to permit the use of the supporting structure. If an application is denied, the Director shall advise the applicant by a written, electronic, or facsimile communication of the basis for the denial.
j. 
Delinquent Amounts Must be Paid. No action may be taken pursuant to an approved permit unless and until all delinquent amounts owed by the applicant to the City are fully paid.
k. 
Appeals. Any applicant adversely affected by an action of the Director's designee with respect to a wireless telecommunications facility may appeal the action to the Director by filing a notice of appeal with the department, and identifying the actions that are being appealed. The appeal must be received within seven business days of the date the applicant is notified of the written decision, which notification may be electronic or by mail. The Director may decide the appeal based on the information submitted to the department, or receive additional information and conduct such public hearings as appropriate. In determining the procedures to be followed in a particular case the Director shall take into account any applicable law governing the timing for a final decision. The Director may enter into agreements or grant requests for extensions of time (including the time for filing an appeal), provided the extensions do not prevent timely final action on an application under applicable law. No decision on appeal shall be final until a written decision issues.
[Added 8-5-2020 by Ord. No. 6PSF-D, 08-05-2020]
The Director of the Department of Finance shall place all telecommunications fees paid to the City of Newark into a separate account.