City of Bayonne, NJ Telecommunications Facilities in the Public Right-Of-Way

As consideration to the City 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 chapter,[1] 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.

[1]

Editor's Note: Said schedule is included as an attachment to this chapter.

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 chapter. If said small cell permit application escrow is insufficient to cover incurred one-time fees as described below and in Schedule A, then 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.

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

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.

Annual ROW occupancy rate shall be as specified in Schedule A of this chapter[2] 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 City and applicant.

[2]

Editor's Note: Said schedule is included as an attachment to this chapter.

Annual attachment rate, equal to an amount that represents a reasonable approximation of the objectively reasonable costs incurred by the City for the attachment of each small wireless facility to City-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 § 27-2.1c1 and 2 combined shall not exceed $270 annually per small wireless facility location.

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

Make-ready fee shall be determined on a site-specific, engineering basis, for work reasonably necessary to make a particular City pole suitable for attachment of the applicable communications facility shall be paid upon submission of the application as more particularly described in Subsection 27-2.3 below.

Other Terms.

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

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.

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 City 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.

Indemnification and Insurance Requirements.

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 City a certificate(s) of insurance with any required endorsements evidencing the coverage provided by said liability and excess liability policies. The City shall notify applicant within 15 days after the receipt of any claim or demand to the City, either by suit or otherwise, made against the City 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. Applicant shall notify the City Clerk within 15 days of receipt of any claim or demand of 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 chapter.

Indemnification. Applicant, its successors, assigns, contractors, subcontractors, agents, servants, officers, employees, designees, guests and invitees, hereby indemnify, defend and hold harmless the City, 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 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 City, 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 City 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 applicant's activities pursuant to the rights granted in this agreement. This indemnification shall also specifically include that the City retains the right to choose its own defense counsel in regard to any action at law or equity pursuant to this section.

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

Additional Agreement Terms: Additional terms, such as for termination, assignment and sublicensing rights, shall be as negotiated between the applicant and City.

Nondiscriminatory. Applications will be processed on a nondiscriminatory basis.

§ 27-2.2 Permitted Communications Facility Uses/Administrative Review; Application.

[12-16-2020 by Ord. No. O-20-61]

Permitted Use. The following uses within the public ROW shall be a permitted use, subject to the entering into of a municipal agreement between applicant and City as set forth in § 27-2.1c above, and administrative review and the issuance of a permit as set forth in this § 27-2.2. All such uses shall be in accordance with all other applicable provisions of this chapter, including without limitation, those set forth in § 27-2.5 below.

Co-location of a small wireless facility.

Co-location that qualifies as an eligible facilities request.

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 27-2.3c(1) below.

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 chapter.

Construction of a communications facility, other than those set forth in this Subsection 27-2.2a1, 2 or 3, 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.

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.

The City reserves and retains the right to subject any installation or modification contemplated in this section as well as in this chapter 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.

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 35, Zoning Regulations, as described in § 27-2.4 of this chapter.

Permit Required. No person shall place any facility described in Subsection 27-2.2a above in the public ROW without first filing an application for same and obtaining a permit therefor, except as otherwise expressly provided in this chapter.

Proprietary or Confidential Information in Application. The City 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, 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 City shall treat the information as proprietary and confidential, subject to applicable state and local "freedom of information" or "sunshine" laws and the City'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 chapter, open and available for public inspection, including proposed communications facilities' site locations.

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

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

The names, addresses, telephone numbers, and e-mail addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application.

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.

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 City ordinances.

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 § 27-2.1d4, for its applications for administrative review and permit issuance.

Applicant shall demonstrate compliance with § 27-2.8, Design Standards, as they pertain to appearance, siting and height of the proposed communications facilities and their support poles, towers or other structures.

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.

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.

Ordinary Maintenance, Repair and Replacement. Ordinary maintenance and repairs may require administrative review and be subject to the provisions of § 27-2.1b and c of this chapter, including notification to the City designee of any proposed work, repairs, replacement and modification. This will include coordination with the City DPW and Police Department for necessary street closures and safety protocols, as well as the payment of any required fees required under § 27-2.1a above.

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

Application Fees. Unless otherwise provided by applicable laws, all applications pursuant to this chapter shall be accompanied by the fees required under Subsection 27-2.1a above.

§ 27-2.3 Action on Administrative Review Applications.

[12-16-2020 by Ord. No. O-20-61]

Review of Applications for Administrative Review. The City shall review the application in light of its conformity with applicable provisions of this chapter, and shall issue a permit on nondiscriminatory terms and conditions, subject to the following requirements:

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

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

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

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

(d)

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

Tolling Period: Unless a written agreement between the applicant and the City provides otherwise, the tolling period for an application (if any) is as set forth in Subsection a2(a) through (c) of this section.

For an initial application to deploy small wireless facilities, if the City 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 City to render the application complete.

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

The day after the date when the City 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

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

(3)

But only if the notice pursuant to Subsection a2(b)(1) of this section is effectuated on or before the 30th day after the date when the application was submitted; or

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

The day after the date when the City 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 City's original request under Subsection a2(b)(1) or (2) of this section; until

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

(3)

But only if the notice pursuant to Subsection a2(c)(1) of this section is effectuated on or before the 10th day after the date when the applicant makes a supplemental submission in response to the City's request under Subsection a2(b)(1) or (2) of this section.

The City 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 City 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 City. 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 City shall be limited to the deficiencies cited in the original denial and any material changes to the application made to cure any identified deficiencies.

Undergrounding Provisions. The City shall administer undergrounding provisions in a non-discriminatory manner. It shall be the objective of the City 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 City 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 above-ground horizontal cables, poles, or equivalent vertical structures in the public ROW; and the City 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 City (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.

Effect of Permit.

Authority Granted; No Property Right or Other Interest Created. A permit from the City authorizes an applicant to undertake only certain activities in accordance with this chapter, and does not create a property right or grant City to the applicant to impinge upon the rights of others who may already have an interest in the public ROW.

Duration. Any permit for construction issued under this chapter 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).

Removal, Relocation or Modification of a Communications Facility in the ROW.

Notice. Within 90 days following written notice from the City, 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 City has determined that such removal, relocation, change or alteration is reasonably necessary for the construction, repair, maintenance, or installation of any City improvement in or upon, or the operations of the City 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 City. The City shall apply the same standards to all utilities in the public ROW.

Emergency Removal or Relocation of Facilities. The City retains the right and privilege to cut power to or move any communications facility located within the public ROW of the City, as the City may determine to be necessary, appropriate or useful in response to any public welfare emergency, or safety emergency. If circumstances permit, the City 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.

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

Prior to commencing reconditioning work, the City 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 City reserves the right to require the provider to remove all of the provider's communications facility from the City 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 City will provide the provider with a date by which its equipment must be protected or removed. The provider may request a modification of the City procedures for carrying out reconditioning work in order to reduce the interference with provider's operation of its communications facility. If the City agrees to the modification, the provider shall be responsible for all reasonable incremental cost related to the modification.

If the City poles need to be replaced ("replacement work"), the City shall provide provider with at least 60 days' written notice to remove its communications facilities. The City shall also promptly notify provider when the City poles have been replaced and provider may reinstall its equipment. During the replacement work, the provider may maintain a temporary communications facility on the property, or after approval by City, on any land owned or controlled by City, 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 City.

If the City poles need to be repaired due to storm or other damage ("repair work"), the City shall notify the provider to remove its communications facilities as soon as possible. In the event of an emergency, the City shall contact the provider by telephone at its emergency contact of record upon or prior to removing the provider's equipment. Once the City poles have been replaced or repaired, the City will promptly notify the provider that it can reinstall its equipment. During City 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 City 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 City.

Attachment to City Poles in the Public ROW.

Make-Ready. For any attachment to City poles in the public ROW, the City shall provide a good faith estimate for any make-ready work necessary to enable the City 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 City 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. City 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 City. If City 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 City pole, applicant may perform the work itself consistent with City approval under this chapter.

§ 27-2.4 Applications Requiring Discretionary Review and Approval.

[12-16-2020 by Ord. No. O-20-61]

Discretionary Review Required. All other uses not expressly set forth or referenced in Subsection 27-2.2(a) above shall require compliance with applicable City ordinance, including, but not limited to, Zoning § 35-26, Wireless Telecommunications Towers, Facilities and Antennas, and the district zoning regulations and any other applicable laws and ordinances of the City.

§ 27-2.5 Other Public ROW Installation Requirements.

[12-16-2020 by Ord. No. O-20-61]

General Principles.

The City 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 City 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.

If unused space is available on an applicant's pole, and applicant is not under any agreement or arrangement to permit usage of excess space by another communications service provider or other entity, and the City approaches applicant about its desire and intent to use such unused pole space, then applicant shall permit the City to use same at no cost to City. 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.

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 chapter, unless otherwise expressly exempted by the City.

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 City 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 City shall be kept and maintained in a safe and well-ordered condition, and in good order and repair.

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 City 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.

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

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.

Location of Existing Facilities.

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.

In the event that the City 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 City to place its infrastructure in the occupant's trenches and bores as requested by the City. In these instances, the City will bear an incremental share of the costs of trenching, boring and the placement of conduit and infrastructure.

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.

(Reserved)

Abandonment of Facilities.

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 City 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 City will choose from the following options within 14 days or any other agreed upon option, and so notify the occupant of its decision:

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

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 City requires it to remove, after 90 days' notice to the occupant, the City may perform the work and shall be entitled to collect the cost from the occupant its successors and/or assigns.

Additional Requirements.

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

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

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

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

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:

Notification to City designee for all work contemplated in this chapter, pursuant to § 27-2.1

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

Zoning permit, as applicable, per this chapter

(d)

Street opening permit, if applicable, per City Code Chapter 15, Streets and Sidewalks.

(e)

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

(f)

Engineering review by an outside consultant, as needed

(g)

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

Existing Utility Easements in the Public Right-of-Way.

Applicants will work with the City Engineer to coordinate and protect existing utilities in the public ROW.

Applicants will coordinate with the City 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 City disturbance.

§ 27-2.6 Attachment to and Replacement of Decorative Poles.

[12-16-2020 by Ord. No. O-20-61]

Notwithstanding anything to the contrary in this chapter, the City 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:

Issuance of a permit under Subsection 27-2.2a above.

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 City.

§ 27-2.7 Batch Applications.

[12-16-2020 by Ord. No. O-20-61]

An applicant seeking to construct, modify or replace a network of communications facilities may, at the applicant's discretion and subject to the City's approval, batch application requirements and file a consolidated application and receive multiple permits or a single permit for multiple communications facilities. The City's denial of any site or sites within a consolidated application shall not affect other sites submitted in the same application. The City 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 section.

§ 27-2.8 Design Standards.

[12-16-2020 by Ord. No. O-20-61]

All above-ground 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:

Siting and Design Requirements:

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

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

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

Is approved pursuant to the provisions of this chapter;

Replaces an existing pole; or

(iii)

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

(iv)

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

(v)

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.

(vi)

Is compliant with Chapter 15, Streets and Sidewalks, of the City 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.

Ground-Level Cabinet Siting Standards. Ground-level cabinets shall conform to the following siting standards:

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

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

Is less than 28 cubic feet in volume; and

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

(iii)

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

(iv)

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

Pole-Mounted Antenna and Pole-Mounted Cabinet Siting Standards.

(d)

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

Does not exceed three cubic feet in volume; and

(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:

Does not exceed 16 cubic feet; and

(iii)

Does not inhibit any sight triangles or sight distance; and

(iv)

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

Maximum Height Requirements.

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 Subsection 27-1.2 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 27-2.8, subject to the following requirements.

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

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 chapter, 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

Fifty feet above ground level.

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

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