Borough of Ship Bottom, NJ Chapter 16.53 Wireless Communications Facilities

§ 16.53.010 Purpose.

[9-22-2020 by Ord. No. 2020-16[1]]

The purposes for the regulations of wireless communications facilities are as follows.

A. Protect residential areas and land uses from potential adverse impacts of wireless communications facilities and encourage applicants to locate wireless communications facilities, to the extent practicable and possible, in areas where the adverse impact to the community is minimal.

B. Encourage and ensure the appropriate location of wireless communications facilities to avoid potential damage to adjacent properties and ensure the public health, welfare, and safety through proper engineering and careful siting of wireless communications facilities in accordance with federal and state law.

C. Encourage the co-location and joint use of existing and approved wireless communications facilities, towers, and utility poles as a primary option rather than construction of new tower-based wireless communications facilities and new small wireless facility poles.

D. Encourage applicants to configure wireless communications facilities in a way that minimizes their adverse visual impact through careful design, siting, landscape screening, and innovative camouflaging and stealth technology to preserve the aesthetic character in accordance with applicable zoning, planning, and design standards.

E. Promote and ensure the positive impact of wireless communications facilities and enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently and to ensure that the residents, visitors, public safety operations, and businesses have reliable access to wireless telecommunications networks and state-of-the-art communications services.

F. Comply with applicable federal and state law on the siting and regulation of wireless communications facilities while protecting the public health, welfare, and safety.

G. Interpretation.

1. This chapter is not intended to, nor shall it be interpreted or applied to: a) prohibit or effectively prohibit any personal wireless service provider's ability to provide personal wireless, data, and communications services; b) prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulations for ROW management; c) unreasonably discriminate among providers of functionally equivalent services; d) deny any request for authorization to place, construct, or modify personal wireless service facilities on the basis of environmental effects of radio frequency emissions so long as such wireless communications facilities comply with the FCC's regulations concerning such emissions; e) prohibit any co-location or modification that the Borough may not deny under federal or state law; or f) otherwise authorize the Borough to preempt any applicable federal or state law.

2. In furtherance of the foregoing goals, due consideration shall be given to the Master Plan, Zoning Map, existing land uses, and environmentally sensitive areas in the approving of sites for the location of wireless communications facilities and the regulation of such facilities.

[1] Editor’s Note: This ordinance also repealed former Ch. 16.53, Wireless Communications Facilities, adopted 5-23-2017 by Ord. No. 2017-05.

§ 16.53.020 Applicability.

[9-22-2020 by Ord. No. 2020-16]

A. All wireless communications facilities are subject to these regulations, except as otherwise provided herein.

B. Amateur radios; receive-only antennas. This chapter shall not govern any tower or the installation of any antenna that is under 70 feet in height which is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive-only antennas.

C. Preexisting towers or antennas. Prexisting towers or antennas shall not be required to meet the requirements of this chapter, other than the requirements regarding building codes and safety standards. This exception shall not apply to any expansion or intensification of a preexisting tower or antenna.

D. Public entities. Wireless support structures, tower-based wireless communications facilities, and wireless communications facilities operated, leased, or used by the Borough shall be exempt from the requirements of this chapter. The Borough shall be a permitted use in all zone districts, provided that any lease authorizing such facilities has been approved by the Borough, and, as a condition of any such lease, the Borough may require site plan approval or may exempt the applicant from approval.

E. Satellite dish antenna. This chapter shall not govern any parabolic satellite antennas.

§ 16.53.030 Permitted use, scope, and restrictions.

[9-22-2020 by Ord. No. 2020-16]

A. Wireless communications facilities are a permitted use in the General Commercial, Special Commercial, and Marine Commercial Zones. Only collocation of small wireless facilities on utility poles in the ROW and the construction of small wireless facility poles for the purpose of siting small wireless facilities in the ROW shall be permitted in residential zones. No other wireless communications facilities of any type shall be permitted in any residential zones or within 100 feet of a lot in residential use or a residential district boundary.

[Amended 10-26-2021 by Ord. No. 2021-17]

1. Every small wireless facility pole shall be required to be designed and installed in a manner in order that it can accommodate two additional small wireless facilities for installation by additional carriers.

2. If structurally and technologically feasible, every utility pole and replacement utility pole used for the siting and collocation of small wireless facilities shall be required to be designed and installed in a manner in order that it can accommodate two additional small wireless facilities for installation by additional carriers.

B. No wireless communications facilities are permitted inside or on any buildings or accessory buildings. Except for the co-location of small wireless facilities on utility poles and siting of small wireless facilities on small wireless facility poles in the ROW as required by federal and state law, and, as otherwise provided by the Borough Code, no non-tower-based wireless communications facilities shall be permitted.

C. No lattice towers or guyed-lattice towers shall be permitted.

D. Except as otherwise provided by law for public utilities and the approval and construction of new small wireless facility poles for the purpose of siting small wireless facilities as permitted by the Borough Code, no new wireless communications support structures, such as towers or monopoles, shall be permitted in the ROW. Only co-location of small wireless facilities, nonsubstantial changes to existing wireless communications support structures, utility poles, and small wireless facility poles shall be permitted in the ROW.

E. No advertising or non-safety-related signs of any type shall be permitted on any wireless communications facilities, wireless communications support structures, wireless communications equipment, cabinets, or base stations.

F. All wireless communications facilities shall comply with all applicable federal, state, county, and Borough laws and regulations.

§ 16.53.040 Co-location and priority policy.

[9-22-2020 by Ord. No. 2020-16]

A. It is the Borough's policy that the first priority locations for wireless communications facilities shall be the Borough-owned towers, and then non-Borough-owned existing towers and wireless communications support structures, and all applicants for new wireless communications facilities shall make all reasonable and good-faith efforts to co-locate the proposed wireless communications facilities and/or secure the location of such facilities on the Borough-owned wireless communications support structures first, the non-Borough-owned existing towers and wireless communications support structures second, the co-location of small wireless facilities on existing utility poles third, and the construction of small wireless facility poles fourth.

B. The Borough's priority policy for small wireless facilities is as follows.

1. Existing utility poles shall be the priority locations for such facilities, followed by replacement of utility poles, and followed by the construction of new small wireless facility poles.

2. First priority for co-location on existing utility poles and construction of new small wireless facility poles shall be first in nonresidential zones, second on Long Beach Boulevard in all zones, and third on local residential streets.

C. An applicant proposing any wireless communications facility at a new location shall demonstrate and document that it made its best efforts to find a co-location site and that none was available, practicable, economically feasible, or viable.

§ 16.53.050 Application fees, costs, and escrows relating to wireless communications facilities outside the ROW.

[9-22-2020 by Ord. No. 2020-16]

A. The Borough may assess appropriate and reasonable application fees directly related to the actual costs in reviewing and processing the application for approval of wireless communication facilities, as well as actual inspection, monitoring, and related costs, as set by resolution. The Borough may also impose and require escrow fees for the payment of actual fees and costs, as the Borough deems appropriate by way of resolution.

B. Retention of experts and costs. The Borough and the Land Use Board may use and/or hire any consultants, engineers, attorneys, and/or experts to assist with the review and application for approval of wireless communications facilities, and, following approval, assist with the review and evaluation of any potential violations. The applicant and/or owner of the wireless communication facility shall reimburse the Borough and the Land Use Board for all costs of the foregoing activities.

§ 16.53.060 Application fees and costs relating to wireless communications facilities inside the ROW.

[9-22-2020 by Ord. No. 2020-16]

A. All applications shall be accompanied by a fee directly related to a reasonable approximation of the Borough's costs reasonably incurred as a direct result of the application and which the fee shall be set at $500 for an application including one to five location sites and $100 for each additional location site.

B. In addition to other fees provided herein, every wireless communications facility in the ROW is subject to the Borough's right to fix annually a fair and reasonable compensation to be paid for use and occupancy of the ROW. Such compensation for ROW use shall be directly related to the Borough's actual ROW management costs, if any, including, but not limited to, the costs of the administration and performance of all review, inspection, supervision, and other ROW management activities by the Borough. The owner of each wireless communications facility shall pay an annual fee to compensate the Borough for the Borough's costs incurred, if any. The annual ROW management fee for wireless communications facilities shall be determined by Borough and authorized by resolution. Unless otherwise permitted by law, the annual fee shall be set at $270 for each site in the ROW.

§ 16.53.070 Application requirements for construction and/or installation of all wireless communications facilities that constitute a new tower and tower-based wireless communications facility.

[9-22-2020 by Ord. No. 2020-16]

A. Except as otherwise provided, no wireless communications facilities shall be constructed, erected, or substantially changed unless site plan approval and any and all applicable variances are obtained from the Land Use Board.

B. This section shall not apply to existing utility poles, the replacement of utility poles, and new utility poles in the ROW and the construction of small wireless facility poles in the ROW. The foregoing does not constitute towers or tower-based wireless communications facilities.

C. The following provisions shall apply to applications for such approval.

1. Applications for site plans, along with any required variances, shall be subject to the procedures and requirements of the Municipal Land Use Law and the Borough Code, except as modified herein.

2. In granting site plan approval or a variance, the Land Use Board may impose additional conditions consistent with federal and state law to the extent the Land Use Board concludes such are necessary to minimize any adverse effect of the proposed wireless communications facility on adjoining properties.

3. Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by a licensed professional engineer of the state.

4. An applicant for site plan approval or a variance shall submit the information required, a nonrefundable application fee, and an escrow deposit.

5. Any tower shall be designed and constructed so as to accommodate at least four antenna arrays of separate wireless communications providers, where such accommodation is technically feasible.

D. In addition to any and all information required for applications for site plan approval or a variance pursuant the Borough Code, applicants for approval for the construction or installation of wireless communication facilities shall submit all of the items identified on the application checklist, along with the following information, before the application is certified as complete.

1. A completed prescribed application and application checklist for proposed wireless communications facilities.

2. The identity of the owner of the property, structure, and/or building and a copy of the lease (with confidential or proprietary information redacted), proof of ownership and authority, and deed for the property.

3. A scaled site plan clearly indicating the location, type, and height of the proposed wireless communications facility, on-site land uses and zoning, adjacent land uses and zoning (including when adjacent to other municipalities), adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed wireless communications facility and any other structures, topography, parking, and other information as required by the Borough Code, or as required by the Borough or Board Engineer, to enable comprehensive review of the application.

4. A survey of the property, including a letter of interpretation from the State Department of Environmental Protection, signed and sealed by a land surveyor licensed in the state, dated no earlier than 12 months prior to the date of the application.

5. The separation distance between the proposed wireless communications facility and the nearest residential unit and/or residentially zoned property and boundary line.

6. The separation distance from other wireless communications facilities described in the inventory of existing sites shall be shown on an updated site plan or map certified by a licensed engineer or licensed land surveyor. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s).

7. A landscape plan showing specific landscape materials and precise locations of proposed landscaping improvements, including, but not limited to, species type, size, spacing, other landscape features, and existing vegetation to be retained, removed, or replaced, which shall be certified by a licensed engineer or certified landscape architect.

8. An environmental impact study.

9. A plan evidencing compliance with the applicable requirements, including, but not limited to, the architecture, stealth technology requirements, aesthetics, color, camouflage, landscaping, and fencing.

10. A written report of the suitability or nonsuitability of the use of existing wireless communications facilities or other structures for services to be provided through the use of the proposed new wireless communications facility.

11. A written report of the feasible location(s) of future wireless communications facilities that may be erected by the applicant within the Borough based upon existing physical engineering, technological, or geographical limitations in the event the proposed wireless communications facility is erected.

12. A visual study, including photographic or topographic plans, identifying a line-of-sight analysis detailing the view of the proposed wireless communications facility from various directions and angles from adjacent areas within a 750-foot radius of the proposed wireless communications facility. The analysis shall be utilized to determine buffer requirements.

13. Documentation of the results of the crane test, including a line-of-sight survey and photographic result of the crane test with regard to the potential visual and aesthetic impacts of the proposed tower. Such documentation must establish the zone of visibility of the proposed tower.

14. Photo simulations of any proposed tower, which shall include at least one photo simulation from at least four angles of view of the tower (from the north, east, south and west), taken from ground level at the property line of the proposed site of any tower. Photo simulations presented to the approving authority shall be in color and a minimum of eight inches by 11 inches in size.

15. Documentary and expert evidence regarding the need for the wireless communications facility, which information shall identify the existing wireless network layout and existing coverage areas to demonstrate the need for the facility at a particular location within the Borough. The evidence shall include a report of the radio frequency engineering analysis of the search area for the wireless communications facility.

16. A report from a qualified expert certifying that the wireless communications facility complies with the latest structural and wind loading requirements as set forth in the requirements as set forth in the International Building Code, New Jersey State edition, as amended, or the applicable New Jersey structural and wind requirements, including a description of the number and type of antennas it is designed to accommodate.

17. A statement by the applicant demonstrating whether construction of the wireless communications facility will accommodate co-location of additional antennas for future users. If so, a letter of commitment by the applicant to lease the excess space on the wireless communications facility to other potential users at prevailing market rates and conditions. The letter of commitment shall be recorded prior to the issuance of a building permit. The letter shall commit the tower owner and all successors in interest.

18. Elevations of all existing and proposed structures generally depicting all existing and proposed antennas, towers, platforms, and finish materials, as well as all other accessory equipment.

19. An inventory of the applicant's existing wireless communications facilities or sites approved for towers or antennas within the jurisdiction of the Borough and within three miles of the proposed site, including specific information about the location, height, and design of each wireless communications facility. The Borough and the Land Use Board may share such information with other applicants applying for administrative approvals or permits under this section or other organizations seeking to locate wireless communications facilities within the jurisdiction of the Borough; provided, however, that the Borough and Land Use Board are not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

20. Identification of the entities providing the backhaul network for the wireless communications facility described in the application and other wireless communications facilities owned or operated by the applicant in the Borough.

21. Detailed and certified engineering plans of the wireless communications facility proposed and any and all related equipment.

22. Fully executed indemnification and hold harmless agreements prepared by the Borough, which are provided with the application package.

23. Documentation that the existing vegetation, trees, and shrubs located within proximity to the wireless communications facility structure shall be preserved to the maximum extent possible.

24. A soil report to the Borough complying with the standards of Appendix I: Geotechnical Investigations, ANSI/ETA 222-B, as amended, to document and verify the design specifications of the foundation of the wireless communications support structure and anchors, if used.

25. Documentation of compliance with all of the applicable requirements set forth in § 16.53.100.

§ 16.53.080 Review of applications for construction and/or installation of all wireless communications facilities that constitute a new tower and tower-based wireless communications facility

[9-22-2020 by Ord. No. 2020-16]

A. Time frame for review. The Land Use Board shall render a decision on an application within 150 days of receipt of a complete application.

B. Incomplete applications. The Land Use Board may toll the 150-day time frame set by notifying the applicant, within 30 days of receipt of submission of an application, that the application is incomplete. Such notification shall set forth all outstanding information, as well as the applicable Borough Code provision, ordinance, application instruction, or publicly stated procedure requiring the information to be submitted. The 150-day time frame shall begin again upon receipt of the supplemental submission.

C. Subsequent incomplete applications. The Land Use Board may thereafter toll the 150-day time frame by notifying the applicant, within 10 days of receipt of the supplemental submission, that the applicant did not provide the information identified in the original notice delineating missing information. Second or subsequent notices of incompleteness may not specify missing documents or information not previously delineated in the original notice of incompleteness.

D. Failure to act. If the Land Use Board does not approve or deny an application within 150 days of receipt of the application or any applicable tolling periods thereafter, the applicant may notify the Land Use Board in writing that the review period has expired. Upon the Land Use Board's receipt of this notice from the applicant, the application shall be deemed granted.

§ 16.53.090 Application requirements for new construction and/or installation of all wireless communications facilities that include new small wireless facility poles for siting of small wireless facilities in the ROW.

[9-22-2020 by Ord. No. 2020-16]

A. An application for development to construct and/or install new wireless communications facilities that constitute new construction and/or installation of all wireless communications facilities that include new small wireless facility poles for the siting of small wireless facilities in the ROW, the co-location of non-small wireless facilities, substantial changes to small wireless facilities, and nonsubstantial changes to non-small wireless facilities shall not be subject to site plan review, provided the application meets the following requirements.

1. If co-location to or nonsubstantial change to an existing wireless communications support structure, the existing structure shall have been previously granted all necessary approvals by the appropriate approving authority.

2. If construction and/or installation of a new small wireless facility pole in the ROW for the purpose of siting small wireless facilities in the ROW, the new structure shall obtain all necessary approvals by the appropriate approving authority.

3. The proposed application satisfies the federal and state requirements to meet the standards for co-location.

4. The proposed co-location and/or change complies with the final approval of the wireless communications support structure and all conditions attached thereto and does not create a condition for which variance relief would be required pursuant to N.J.S.A. 40:55D-1 et seq., or any other applicable law, rule, or regulation.

5. Complies with all applicable requirements of the Borough Code.

B. Each application shall be limited to a request to construct and/or install a total of one wireless communications facility that constitutes new construction and/or installation of all wireless communications facilities that include new small wireless facility poles for the siting of small wireless facilities in the ROW, the co-location of non-small wireless facilities, substantial changes to small wireless facilities, and nonsubstantial changes to non-small wireless facilities.

C. All applications shall be submitted to the Municipal Clerk on the prescribed application and checklist form(s) and shall include the following information.

1. A completed application and application checklist.

2. A statement and supporting proofs that the application qualifies as new construction and/or installation of all wireless communications facilities that include new small wireless facility poles for the siting of small wireless facilities in the ROW, the co-location of non-small wireless facilities, substantial changes to small wireless facilities, and nonsubstantial changes to non-small wireless facilities.

3. The identity of the owner of the property, structure, and/or building and proof of approval to use the site and compliance with N.J.S.A. 48:3-18.

4. Proof of all consents required by federal, state, and local law and regulations, including N.J.S.A. 48:17-8.

5. Certification that the applicant possesses the legal authority to construct, co-locate, and/or change the wireless communications support structure, which may include approvals from the jurisdiction authorizing the initial placement of the wireless communications support structure and transmission equipment.

6. Fully executed indemnification and hold harmless agreements.

7. A scaled location plan clearly indicating the location, type, and height of the proposed wireless communications facility, on-site land uses and zoning, adjacent land uses and zoning (including when adjacent to other municipalities), adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed wireless communications facility and any other structures, topography, parking, and other information as required by the Borough Code, or as required by the Borough to enable comprehensive review of the application.

8. The separation distance from other wireless communications facilities shall be shown on a location plan or map certified by a licensed engineer or licensed land surveyor. The applicant shall also identify the type of construction of the existing wireless communications support structure(s) and the owner/operator of wireless communications support structures within one mile.

9. A description of the type and quantity of equipment to be installed and the number and size of any equipment cabinets to be installed.

10. A description of any excavation required.

11. A description of any change in wireless communications support structure height and/or width as a result of the proposed co-location, removal, or replacement.

12. A plan evidencing the development's compliance with the applicable requirements, including, but not limited to, the architecture, aesthetics, color, and use of stealth technology.

13. A written report of the nonsuitability or nonsuitability of the use of existing wireless communications facilities or other structures for services to be provided through the use of the proposed new wireless communications facility, including certification from a structural engineer that the existing or new utility pole is structurally suitable and safe for new construction and/or installation of all wireless communications facilities that include new utility poles for the siting of small wireless facilities in the ROW, the co-location of non-small wireless facilities, substantial changes to small wireless facilities, and nonsubstantial changes to non-small wireless facilities.

14. A report from a qualified expert certifying that the wireless communications facility complies with the latest structural and wind loading requirements as set forth in the International Building Code, New Jersey State edition, as amended, or the applicable New Jersey structural and wind requirements, including a description of the number and type of antennas it is designed to accommodate.

15. A statement by the applicant demonstrating whether construction of the wireless communications facility will accommodate co-location of additional antennas for future users. The statement shall commit the wireless communications support structure owner and successors in interest.

a. Small wireless facilities on new small wireless facility poles shall include a statement and evidence that new small wireless facility poles shall be designed and installed to accommodate two additional small wireless facilities for installation by additional carriers. If it is the applicant’s position that no additional small wireless facilities can be co-located on the existing or replacement utility pole on the bases of technological or structural reasons, the applicant shall submit proof that supports its position.

[Added 10-26-2021 by Ord. No. 2021-17]

16. Elevations of all proposed wireless communications facilities generally depicting all existing and proposed antennas, wireless communications support structures, platforms, and finish materials, as well as all other accessory equipment.

17. An inventory of its existing wireless communications facilities or sites approved for wireless communications support structures or antennas within the jurisdiction of the Borough.

18. Documentation of compliance with all of the applicable requirements of the Borough Code.

§ 16.53.100 Review of applications for new construction and/or installation of all wireless communications facilities that include new utility poles for siting of small wireless facilities in the ROW.

[9-22-2020 by Ord. No. 2020-16]

A. Initial review. The Mayor and Council shall review the application and advise the applicant within 30 days as to whether Borough deems that the application is subject to these or other regulations. If compliance with other subsections is deemed to be required, the applicant shall proceed in accordance with the applicable regulations.

B. Time frame for review. The Mayor and Council shall review and approve or deny the application within 90 days of receipt. This ninety-day period may be extended by mutual agreement of the Borough and the applicant.

C. Incomplete applications. The Mayor and Council may toll the ninety-day time frame by notifying the applicant, within 30 days of receipt of submission of an application, that the application is incomplete. Such notification shall set forth all outstanding information, as well as the applicable Code provision, ordinance, application instruction, or publicly stated procedure requiring the information to be submitted. The ninety-day time frame shall begin again upon receipt of the supplemental submission.

D. Subsequent incomplete applications. The Mayor and Council may thereafter toll the ninety-day time frame by notifying the applicant, within 10 days of receipt of the supplemental submission, that the applicant did not provide the information identified in the original notice delineating missing information. Second or subsequent notices of incompleteness may not specify missing documents or information not previously delineated in the original notice of incompleteness.

E. Complete applications. The Mayor and Council shall, within the ninety-day time frame, approve all complete applications for the construction and/or installation of all wireless communications facilities that constitute new construction and/or installation of all wireless communications facilities that include new utility poles for the siting of small wireless facilities in the ROW, the co-location of non-small wireless facilities, substantial changes to small wireless facilities, and nonsubstantial changes to non-small wireless facilities and that do not otherwise violate applicable health, safety, and other requirements set forth in this section. If the Mayor and Council determines that an application fails to comply with this section, it shall notify the applicant of same in writing. If applicable, the Mayor and Council shall advise the applicant to initiate the applicable process.

F. Applications on improper towers. Notwithstanding the foregoing, the Mayor and Council is not obligated to approve an application for new construction and/or installation of all wireless communications facilities that include new utility poles for the siting of small wireless facilities in the ROW, the co-location of non-small wireless facilities, and nonsubstantial changes to non-small wireless facilities on a wireless communications support structure or base station that was constructed or deployed without proper review, was not required to undergo siting review, or does not support transmission equipment that received another form of affirmative state or local regulatory approval.

G. Failure to act. If the Mayor and Council does not approve or deny an application for the construction and/or installation of all wireless communications facilities that constitute new construction and/or installation of all wireless communications facilities that include new utility poles for the siting of small wireless facilities in the ROW, the co-location of non-small wireless facilities, substantial changes to small wireless facilities, and nonsubstantial changes to non-small wireless facilities within 90 days of receipt of the application or any applicable tolling periods thereafter, the applicant may notify the Mayor and Council in writing that the review period has expired. Upon the Mayor and Council's receipt of this notice from the applicant, the application shall be deemed granted.

H. Notwithstanding any other regulation to the contrary, the Mayor and Council may relax any requirement, at its sole and absolute discretion, for any or no reason.

§ 16.53.110 Application requirements for co-location and nonsubstantial changes to small wireless facilities.

[9-22-2020 by Ord. No. 2020-16]

A. An application for co-location and nonsubstantial changes to small wireless facilities shall not be subject to site plan review and shall not require compliance with § 16.53.090, provided the application meets the following requirements.

1. If co-location to or nonsubstantial change to an existing wireless communications support structure, the existing structure shall have been previously granted all necessary approvals by the appropriate approving authority.

2. The proposed application satisfies the federal and state requirements to meet the standards for co-location.

3. The proposed co-location and/or change complies with the final approval of the wireless communications support structure and all conditions attached thereto and does not create a condition for which variance relief would be required pursuant to N.J.S.A. 40:55D-1 et seq., or any other applicable law, rule, or regulation.

B. Each application shall be limited to a request to construct and/or install a total of 10 wireless communications facilities that constitute co-location and nonsubstantial changes to small wireless facilities.

C. All applications shall be submitted to the Municipal Clerk on the prescribed application and checklist form(s) and shall include the following information.

1. A completed application and application checklist.

2. A statement and supporting proofs that the application qualifies under this section.

3. The identity of the owner of the property, structure, and/or building and a copy of the agreement relating to N.J.S.A. 48:3-18.

4. Certification that the applicant possesses the legal authority to co-locate and/or change the wireless communications support structure, which may include approvals from the jurisdiction authorizing the initial placement of the wireless communications support structure and transmission equipment.

5. Fully executed indemnification and hold harmless agreements prepared by the Borough, which are provided with the application package.

6. A scaled location plan clearly indicating the location, type, and height of the proposed wireless communications facility, on-site land uses and zoning, adjacent land uses and zoning (including when adjacent to other municipalities), adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed wireless communications facility and any other structures, topography, parking, and other information as required by the Borough Code, or as required by the Borough or Board Engineer, to enable comprehensive review of the application.

7. The separation distance from other wireless communications facilities described in the inventory of existing sites shall be shown on an updated location plan or map certified by a licensed engineer or licensed land surveyor. The applicant shall also identify the type of construction of the existing wireless communications support structure(s) and the owner/operator of wireless communications support structure(s).

8. A description of the type and quantity of equipment to be installed and the number and size of any equipment cabinets to be installed.

9. A description of any excavation required.

10. A description of any change in wireless communications support structure height and/or width as a result of the proposed co-location, removal, or replacement.

11. A plan evidencing the development's compliance with the applicable requirements, including, but not limited to, the architecture, aesthetics, color, and use of stealth technology.

12. A written report of the suitability or nonsuitability of the use of existing wireless communications facilities or other structures for services to be provided through the use of the proposed new wireless communications facility, including certification from a structural engineer that the existing utility pole is structurally suitable and safe for small wireless facilities, co-location and/or nonsubstantial change.

13. A report from a qualified expert certifying that the wireless communications facility complies with the latest structural and wind loading requirements as set forth in the requirements as set forth in the International Building Code, New Jersey State edition, as amended, or the applicable New Jersey structural and wind requirements, including a description of the number and type of antennas it is designed to accommodate.

14. A statement by the applicant demonstrating whether construction of the wireless communications facility will accommodate co-location of additional antennas for future users. The statement shall commit the wireless communications support structure owner and successors in interest.

a. The co-location of small wireless facilities shall include a statement and evidence that the co-location shall be designed and installed to accommodate two additional small wireless facilities for installation by additional carriers. If it is the applicant’s position that no additional small wireless facilities can be co-located on the existing or replacement utility pole on the bases of technological or structural reasons, the applicant shall submit proof that supports its position.

[Added 10-26-2021 by Ord. No. 2021-17]

15. Elevations of all proposed wireless communications facilities generally depicting all existing and proposed antennas, wireless communications support structures, platforms, and finish materials, as well as all other accessory equipment.

16. An inventory of its existing wireless communications facilities or sites approved for wireless communications support structures of antennas within the jurisdiction of the Borough.

17. Documentation of compliance with all of the applicable requirements of the Borough Code.

§ 16.53.120 Review of applications that constitute co-location and nonsubstantial changes to small wireless facilities.

[9-22-2020 by Ord. No. 2020-16]

A. Initial review. The Mayor and Council shall review the application with consultation with the Borough Engineer, the Borough Attorney, and any other consultants and/or experts deemed necessary to determine whether the application qualifies as a request for co-location, and whether the change proposed is nonsubstantial. The Mayor and Council shall review the application and advise the applicant within 30 days as to whether the Borough deems that site plan approval by the Land Use Board or compliance with § 16.53.090 are required. If site plan approval or compliance with § 16.53.090 are deemed to be required, the applicant shall proceed in accordance with the applicable regulations.

B. Time frame for review. The Mayor and Council shall review and approve or deny the application within 60 days of receipt. This sixty-day period may be extended by mutual agreement of the Borough and the applicant.

C. Incomplete applications. The Mayor and Council may toll the sixty-day time frame by notifying the applicant, within 30 days of receipt of submission of an application, that the application is incomplete. Such notification shall set forth all outstanding information, as well as the applicable Code provision, ordinance, application instruction, or publicly stated procedure requiring the information to be submitted. The sixty-day time frame shall begin again upon receipt of the supplemental submission.

D. Subsequent incomplete applications. The Mayor and Council may thereafter toll the sixty-day time frame by notifying the applicant, within 10 days of receipt of the supplemental submission, that the applicant did not provide the information identified in the original notice delineating missing information. Second or subsequent notices of incompleteness may not specify missing documents or information not previously delineated in the original notice of incompleteness.

E. Complete applications. The Mayor and Council shall, within the sixty-day time frame, approve all complete applications for the co-location and nonsubstantial changes to small wireless facilities and that do not otherwise violate applicable health, safety, and other requirements set forth in this section. If the Mayor and Council determines that an application fails to comply with this section, it shall notify the applicant of same in writing. If applicable, the Mayor and Council shall advise the applicant to initiate the applicable process.

F. Applications on improper towers. Notwithstanding the foregoing, the Mayor and Council is not obligated to approve an application for small wireless facilities, co-location, removal, or replacement of equipment on a wireless communications support structure or base station that was constructed or deployed without proper review, was not required to undergo siting review, or does not support transmission equipment that received another form of affirmative state or local regulatory approval.

G. Failure to act. If the Mayor and Council does not approve or deny an application for co-location and nonsubstantial changes to small wireless facilities within 60 days of receipt of the application or any applicable tolling periods thereafter, the applicant may notify the Mayor and Council in writing that the review period has expired. Upon the Mayor and Council's receipt of this notice from the applicant, the application shall be deemed granted.

H. Notwithstanding any other regulation to the contrary, the Mayor and Council may relax any requirement, at its sole and absolute discretion, for any or no reason.

§ 16.53.130 General requirements for construction and/or installation of all wireless communications facilities that constitute a new tower and tower-based wireless communications facility.

[9-22-2020 by Ord. No. 2020-16]

A. Uniform Construction Code; safety standards; standard of care. Wireless communications facilities shall be designed, constructed, operated, maintained, repaired, modified, and removed in strict compliance with all current applicable technical, foundation, safety, and safety-related codes, including, but not limited to, the most recent editions of the American National Standards Institute ("ANSI") Code, National Electrical Safety Code, National Electrical Code, the New Jersey Uniform Construction Code and the applicable standards for towers that are published by the Electronic Industries Association, the Borough Code, as well as the accepted and responsible workmanlike industry practices of the National Association of Tower Erectors. Any tower-based wireless communications facility shall at all times be kept and maintained in good condition, order, and repair by qualified maintenance and construction personnel, so that the same shall not endanger the life of any person or any property in Borough.

B. Co-location. An application shall not be approved unless the Land Use Board finds that the wireless communications equipment cannot be accommodated on an existing or approved structure or building. Any application shall include a comprehensive inventory of all existing towers and other suitable structures within a three-mile radius from the point of the proposed tower, unless the applicant can show to the satisfaction of the Borough that a different distance is more reasonable, and shall demonstrate conclusively why an existing tower or other suitable structure cannot be utilized.

C. Wind. Wireless communications support structures shall be designed to withstand the effects of wind according to the standard designed by the American National Standards Institute as prepared by the engineering departments of the Electronics Industry Association and Telecommunications Industry Association.

D. Height. Wireless communications facilities shall be designed at the minimum functional height and shall not exceed a maximum total height of 100 feet, which height shall include all subsequent additions or alterations. All applicants must submit documentation to the Land Use Board justifying the total height of the structure.

E. Public safety communications. No wireless communications facilities shall interfere with public safety communications or the reception of broadband, television, radio or other communication services enjoyed by occupants of nearby properties.

F. Maintenance. The following maintenance requirements shall apply:

1. Wireless communications facilities shall be fully automated and unattended on a daily basis and shall be visited only for maintenance or emergency repair;

2. Such maintenance shall be performed to ensure the upkeep of the facility in order to promote the safety and security of the Borough's residents;

3. All maintenance activities shall utilize nothing less than the best available technology for preventing failures and accidents; and

4. Except in the case of documented emergencies, five-day written notice of any and all maintenance activities shall be provided to the Chief of Police and the Department of Public Works. Written notice of emergencies and documented proof of same shall be provided to the Chief of Police and the Department of Public Works as soon as practicable, but in no case more than 48 hours from the date of emergency.

G. Radio frequency emissions. No wireless communications facility shall, by itself or in conjunction with other wireless communications facilities, generate radio frequency emissions in excess of the standards and regulations of the FCC, including, but not limited to, the FCC Office of Engineering Technology Bulletin 65, entitled "Evaluating Compliance with FCC Guidelines for Human Exposure to Radio Frequency Electromagnetic Fields," as amended.

H. Identification. All wireless communications facilities shall post a notice in a readily visible location identifying the name and phone number of a party to contact in the event of an emergency, subject to approval of the Land Use Board.

I. Lighting. Wireless communications facilities shall not be artificially lighted, except as required by law and as may be approved by the Land Use Board. If lighting is required, the applicant shall provide a detailed plan for sufficient lighting, demonstrating as unobtrusive and inoffensive an effect as is permissible under state and federal regulations.

J. Appearance and visual compatibility requirements.

1. All wireless communications support structures and facilities shall be located, designed, and screened to blend with the existing natural or building surroundings so as to minimize visual impacts through the use of the latest stealth technology, including color and camouflaging, architectural treatment, landscaping, and other available means, considering the need to be compatible with neighboring residences and the character of the community. The wireless communications facility shall employ the most current stealth technology available in an effort to appropriately blend into the surrounding environment and minimize aesthetic impact.

2. Any height increases to an existing tower-based wireless communications facility shall require prior approval of the Land Use Board. The Land Use Board shall have the discretion to deny such requests based upon aesthetic and land use impact, or any other lawful considerations related to the character of the Borough.

3. Wireless communications facilities shall be designed structurally, electrically, and in all respects to accommodate both the wireless communications facility applicant's antennas and comparable antennas for future users.

4. Towers shall either maintain a galvanized steel finish or be painted a neutral color, and employ stealth technology so as to reduce visual obtrusiveness.

5. At the wireless communications equipment building, the design of the buildings and related structures shall, to the extent possible, use materials, colors, tenures, screening, and landscaping that will blend the tower facilities to the natural setting and surrounding buildings.

6. All wireless communications support structures shall be designed to preserve scenic vistas and views of the Atlantic Ocean, Barnegat Bay, Little Egg Harbor, all inlets, cultural and historical landmarks, and unique geographic and topographic features. Natural features such as trees, views, natural terrain, open waters, and natural drainage ridge lines shall be preserved whenever possible in locating and designing a tower. Towers shall further be designed and located to minimize impact on open space and Green Acres properties.

7. Any and all buildings or structures relating to the wireless communications support structures shall be located, designed, and screened to blend with the existing natural or building surroundings so as to minimize visual impacts through the use of stealth technology.

8. Any and all buildings or structures relating to the wireless communications support structures shall not contain more than 1,600 square feet of gross floor area or be more than 15 feet in height above design flood elevation.

9. Equipment storage buildings or cabinets shall comply with all applicable zoning and building codes.

10. The wireless communications equipment building shall not exceed 10 feet for flat roofs or 15 feet for pitched roofs above base flood elevation, which shall have a minimum vertical rise of six inches for every 12 inches of horizontal run, and the building must blend architecturally with any existing building on the property. Pitched roofs shall be permitted only where the applicant is proposing a structure designed to blend with the local architectural context.

11. When a location out of the view from off-tract properties is not possible, appropriate foundation planting shall be provided outside the wireless telecommunications equipment building.

12. Landscaping. The following requirements shall govern the landscaping surrounding towers for which site plan approval is required.

a. Wireless communications facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from property used for residences.

b. Existing mature tree growth and natural landforms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.

13. In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived by the approving authority if the goals of this section would be better served thereby. Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible.

14. An individual wireless carrier shall not occupy more than 400 square feet of the equipment building.

K. Noise. Wireless communications facilities shall be operated and maintained so as not to produce noise in excess of applicable noise standards under state law and the Borough Code, except in emergency situations requiring the use of a backup generator, where such noise standards may be exceeded on a temporary basis only.

L. Aviation safety. Wireless communications facilities shall comply with all federal and state laws and regulations concerning aviation safety.

M. Nonconforming uses. Nonconforming wireless communication facilities which are hereafter damaged or destroyed due to any reason or cause may be repaired and restored at their former location, but must otherwise comply with the terms and conditions of the Borough Code.

N. Removal. In the event that use of a wireless communication facility is planned to be discontinued, the owner shall provide written notice to the Borough of its intent to discontinue use and the date when the use shall be discontinued. Unused or abandoned based wireless communication facilities or portions of based wireless communication facilities shall be removed as follows:

1. All unused or abandoned wireless communication facilities and accessory facilities shall be removed within six months of the cessation of operations at the site unless a time extension is approved by the Borough.

2. If the wireless communication facility and/or accessory facility is not removed within six months of the cessation of operations at a site, or within any longer period approved by the Borough, the wireless communication facility and accessory facilities and equipment may be removed by the Borough and the cost of removal assessed against the owner.

3. Any unused portions of the wireless communication facilities, including antennas, shall be removed within six months of the time of cessation of operations. The Borough must approve all replacements of portions of a tower-based wireless communication facility previously removed.

O. Additional antennas. As a condition of approval for all wireless communications facilities, the applicant shall provide the Borough with a written commitment that it will allow other service providers to co-locate antennas on the wireless communications facilities where technically and economically feasible. The owner of a tower-based wireless communications facility shall not install any additional antennas without obtaining the prior written approval as required in this section.

P. Environmental. Wireless communication facilities shall comply with all applicable environmental regulations.

Q. Visual or land use impact. The Land Use Board shall have the discretion to deny an application for the construction or placement of any wireless communications facility based upon visual and/or land use impact.

R. Inspection. The Borough shall possess the right to inspect any wireless communications facility to ensure compliance with the provisions of the Borough Code or state or federal law. The Borough and/or its agents shall have the authority to enter the property upon which a wireless communications facility is located at any time, upon reasonable notice to the operator, to ensure such compliance. If, upon inspection, the Borough concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.

S. Setbacks. The following setback requirements shall apply to all towers:

1. Towers must be set back a distance equal to at least 100% of the height of the tower from any adjoining lot line and all nonappurtenant buildings and structures to ensure public safety in the event of a collapse or fall of the tower, provided that distance is no closer than the building setback applicable to the zoning district.

2. Accessory buildings must satisfy the minimum zoning district setback requirements.

3. No tower shall exist within required buffer or conservation easement areas.

T. Separation distance from tower to tower. No tower shall be within 1,500 feet of another tower. Tower separation shall be measured from the base of the tower to the base of the other tower.

U. Insurance requirements. All applicants shall be required to provide proof of and maintain comprehensive general liability insurance covering the tower-based wireless communications facility in the minimum coverage amount of $5,000,000 for any one claim and $10,000,000 for any aggregate claim. The insurance policy shall name the Borough as an additional insured. The existence of any available and/or applicable insurance shall not waive or release the applicant from the obligations set forth in the required indemnification agreement included in the application.

V. Fence/screen.

1. A security fence having a maximum height of eight feet shall completely surround any tower-based wireless communications facility, guy wires, or any building housing wireless communications facility equipment.

2. An evergreen screen that consists of a hedge, or a row of evergreen trees, shall be located along the perimeter of the security fence.

3. The wireless communications facility applicant shall submit a landscape plan for review and approval by the Borough Planning Commission for all proposed screening.

W. Accessory equipment.

1. Ground-mounted equipment associated to, or connected with, a tower-based wireless communications facility shall be underground. In the event that an applicant can demonstrate that the equipment cannot be located underground to the satisfaction of the Borough Engineer, then the ground-mounted equipment shall be screened from public view using stealth technologies, as described above.

2. All utility buildings and accessory structures shall be architecturally designed to blend into the environment in which they are situated and shall meet the minimum setback requirements of the underlying zoning district.

X. Access road. An access road, turnaround space and parking shall be provided to ensure adequate emergency and service access to a tower-based wireless communications facility. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and minimize soil erosion. Where applicable, the wireless communications facility owner shall present documentation to the Borough that the property owner has granted an easement for the proposed facility.

Y. Bond. Prior to the issuance of a permit, the owner of a tower-based wireless communications facility outside the ROW shall, at its own cost and expense, obtain from a surety licensed to do business in the state and maintain a bond or other form of security acceptable to the Borough Attorney, in an amount of $500,000, to assure the faithful performance of the terms and conditions of the Borough Code and as a guarantee that no such installation or equipment exceeds or will exceed the allowable FCC limits for radio frequency emissions and radiation exposure to the general public. The bond shall provide that the Borough may recover from the principal and surety any and all compensatory damages incurred by the Borough for violations of this chapter, after reasonable notice and opportunity to cure. The owner shall file a copy of the bond with the Borough, and the bond shall be held and maintained during the entire period of the owner's operation of each wireless communications facility.

Z. Indemnification. All applicants shall be required to execute an indemnification agreement in the form required and pursuant to which the owner shall agree to defend, hold harmless, and indemnify the Borough, its officers, employees, agents, attorneys, volunteers, and independent contractors to the fullest extent under the law.

§ 16.53.140 General requirements for new construction and/or installation of all wireless communications facilities that include new small wireless facility poles for the siting of small wireless facilities in the ROW, the collocation of non-small wireless facilities, nonsubstantial changes to non-small wireless facilities, and the collocation of and nonsubstantial changes to small wireless facilities.

[9-22-2020 by Ord. No. 2020-16; amended 10-26-2021 by Ord. No. 2021-17]

A. Time, place and manner. The Borough shall determine the time, place, and manner of construction, maintenance, repair, and/or removal of all wireless communications facilities based on public safety, traffic management, physical burden on the ROW, public health, welfare, and safety, and related considerations.

B. Small wireless facilities, co-location, and nonsubstantial changes to wireless communications facilities shall be limited to the placement of wireless communications on utility poles and small wireless facility poles inside the ROW.

C. No small wireless facility poles shall include any visible exterior lighting of any kind.

D. All ROW regulations shall apply to all entities and applicants, regardless of whether the ROW is owned and/or controlled by the county or the state.

E. The co-location of small wireless facilities on utility poles in the ROW, the replacement of utility poles to site small wireless facilities in the ROW, and the construction of new small wireless facility poles in the ROW for the purpose of siting small wireless facilities in the ROW shall not constitute towers or tower-based wireless communications facilities and shall comply with the applicable regulations and the following.

1. No utility poles or small wireless facility poles, inclusive of any and all antennas and equipment, shall exceed 40 feet in height.

2. No new small wireless facility poles constructed for the purpose of siting small wireless facilities in the ROW shall be placed within 300 feet of any other existing utility pole that supports a small wireless facility or any other small wireless facility pole. The Mayor and Council may relax this requirement, at its sole and absolute discretion, for any or no reason, to 200 feet.

3. The siting of new small wireless facility poles shall not be greater than five feet from the point where the shared property line between two properties and the ROW intersect. Small wireless facilities in the ROW may be sited by way of replacement utility poles within 10 feet in nonresidential zones and five feet in residential zones from the point of the preexisting utility pole that shall be replaced. All small wireless facilities, including the foregoing, shall be only permitted in the ROW by collocation on existing utility poles or replacement of existing utility poles in all zones if within 15 feet from the point where the shared property line between two properties and the ROW intersect. In addition, the following regulations shall further apply.

a. No replacement utility pole shall be located closer to any type of residential dwelling than the existing utility pole being replaced.

b. No small wireless facilities of any kind in the ROW, including those installed by new small wireless facility poles, replacement utility poles, and collocation shall be permitted within 25 feet of any type of residential dwelling.

4. Where the applicant has demonstrated that an existing utility pole can be used, the antennas shall be mounted to the existing pole in a manner that preserves the structural integrity and aesthetics of the pole.

5. The replacement of existing utility poles and siting of small wireless facility poles shall comply with all applicable federal, state, and local laws and regulations, including N.J.S.A. 48:17-8.

6. Replacement utility poles shall be fabricated using the same materials as the pole to be replaced, shall be the same diameter, and shall be placed in the same location.

7. Unless otherwise permitted by the Mayor and Council, at its discretion, new small wireless facility poles shall be fabricated using the same materials as the existing neighboring utility poles.

8. Panel antennas are not permitted unless the applicant provides evidence that establishes a cylindrical antenna or antennas are not technically feasible.

9. Only one omnidirectional (rod or cannister) antenna and four directional antenna panels shall be permitted per utility pole and small wireless facility pole. No omnidirectional antenna shall be permitted to exceed eight feet in height and the width of the pole by more than a total of six inches. No directional antenna panel shall be permitted to exceed two feet in width, eight feet in height, and nine inches deep. No parabolic (disc) antennas shall be permitted on any utility pole or small wireless facility pole.

a. One remote radio head (RRH) or remote radio unit (RRU) shall be permitted on each utility pole or small wireless facility pole. An RRH or RRU is not considered an antenna.

10. The diameter of small wireless facility poles shall be limited to 4.5 feet.

11. Small wireless facility poles shall be set back from curbs, offset from driveways, offset from trees, and shall not be located within 10 feet of any energized line.

F. Except as otherwise provided in Subsection E2 for small wireless facilities, no wireless communications facilities, including small wireless facilities, shall be located within 300 feet of any other wireless communications facilities.

G. All ground-level cabinets for wireless communications facilities shall comply with the following:

1. No ground-level cabinets shall be permitted in any residential zone.

2. Permitted ground-level cabinets shall:

a. Be less than 28 cubic feet in volume;

b. Not be sited in any sight triangle and shall not inhibit sight at any intersection;

c. Be located greater than 18 inches from the face of a curb; and

d. Allow sufficient room for the public to pass and repass across the ROW and sidewalks.

H. Pole-mounted antennas and cabinets shall comply with the following:

1. Pole-mounted antennas are permitted on utility poles and small wireless facility poles in all zones, provided that each:

a. Does not exceed three cubic feet in volume;

b. Not be sited in any sight triangle and shall not inhibit pedestrian and vehicular sight lines at any intersection; and

c. Allows sufficient room for the public to pass and repass across the ROW and sidewalks.

2. Pole-mounted cabinets are permitted on small wireless facility poles and utility poles, provided that each:

a. Does not exceed 16 cubic feet;

b. Not be sited in any sight triangle and shall not inhibit sight at any intersection;

c. Allows sufficient room for the public to pass and repass across the ROW and sidewalks, does not diminish the usability of the sidewalks, and otherwise does not obstruct, impede, or hinder the usual travel or public safety on the ROW;

d. Is installed at least eight feet above the ground, and, if any wireless facilities or equipment are projecting toward the street or sidewalk, the base of the attachment shall be installed no less than 17 feet above the street or sidewalk;

e. Has no protrusion from the outer circumference of the pole of more than 18 inches;

f. Is limited to a total volume of all installed equipment external to the pole (including, but not limited to, cabinets, vaults, boxes, and antennas) that does not exceed 28 cubic feet, which maximum applies to all equipment installed at the time of the original application and includes any equipment to be installed at a future date.

I. Uniform Construction Code; safety standards; standard of care. Any wireless communications facility shall be designed, constructed, operated, maintained, repaired, modified, and removed in strict compliance with all current applicable technical, safety, and safety-related codes, including, but not limited to, the most recent editions of ANSI, National Electrical Safety Code, National Electrical Code, the State Uniform Construction Code and the applicable standards for towers that are published by the Electronic Industries Association, the Borough Code, as well as the accepted and responsible workmanlike industry practices of the National Association of Tower Erectors. Any wireless communications facility shall at all times be kept and maintained in good condition, order, and repair by qualified maintenance and construction personnel, so that the same shall not endanger the life of any person or any property in the Borough.

J. Wind. Wireless communications facilities shall be designed to withstand the effects of wind according to the standard designed by the American National Standards Institute as prepared by the engineering departments of the Electronics Industry Association and Telecommunications Industry Association.

K. Public safety communications. Wireless communications facilities shall not interfere with public safety communications or the reception of broadband, television, radio or other communication services enjoyed by occupants of nearby properties.

L. Aviation safety. Wireless communications facilities shall comply with all federal and state laws and regulations concerning aviation safety.

M. Radio frequency emissions or radiation. Wireless communications facilities shall not, by themselves or in conjunction with other wireless communications facilities, generate radio frequency emissions or radiation in excess of the standards and regulations of the FCC, including, but not limited to, the FCC Office of Engineering Technology Bulletin 65, entitled "Evaluating Compliance with FCC Guidelines for Human Exposure to Radio Frequency Electromagnetic Fields," as amended.

N. Design and new technology. All wireless communications facilities shall comply with the requirements of Chapter 12.32.

O. Separation; separation distance from wireless communications facilities and antennas. Except as otherwise provided in Subsection E2 for small wireless facilities, no wireless communication facility or antenna shall be within 300 feet of another. The separation shall be measured from the base of the utility pole and/or small wireless facility pole to the base of the other utility pole and/or small wireless facility pole.

P. Noise. Wireless communications facilities shall be operated and maintained so as not to produce noise in excess of applicable noise standards under state law and the Borough Code, except in emergency situations requiring the use of a backup generator, where such noise standards may be exceeded on a temporary basis only.

Q. Historic buildings or districts. No wireless communications facility may be located within 150 feet of any building or structure that is listed on either the National or State Register of Historic Places or the official historic structures and/or historic districts list maintained by Borough, or has been designated by the Borough as being of historic significance.

R. Visual impact and safety. The Borough reserves the right to deny an application for the construction or placement of any wireless communications facilities based upon visual and/or land use impact and require design modification as a pre-condition to approval. No wireless communications facility shall be permitted in any sight triangle or otherwise interfere with sight lines and/or the public health, welfare, and safety.

S. Removal. In the event use of the wireless communications facility is discontinued, the owner shall provide written notice to the Borough of its intent to discontinue use and the date when the use shall be discontinued. Unused or abandoned wireless communications facilities or portions of wireless communications facilities shall be removed as follows:

1. All abandoned or unused co-location of and changes to wireless communications facilities and accessory equipment shall be removed within three months of the cessation of operations at the site unless a time extension is approved by the Borough;

2. If the wireless communications facilities and accessory equipment are not removed within three months of the cessation of operations at a site, or within any longer period approved by Borough, the wireless communications facilities and/or associated equipment may be removed by the Borough and the cost of removal assessed against the owner.

T. Maintenance. The following maintenance requirements shall apply:

1. Wireless communications facilities shall be fully automated and unattended on a daily basis and shall be visited only for maintenance or emergency repair;

2. Such maintenance shall be performed to ensure the upkeep of the facility in order to promote the safety and security of Borough's residents;

3. All maintenance activities shall utilize nothing less than the best available technology for preventing failures and accidents; and

4. Except in the case of documented emergencies five-day written notice of any and all maintenance activities shall be provided to the Chief of Police and the Department of Public Works. Written notice of emergencies and documented proof of same shall be provided to the Chief of Police and the Department of Public Works as soon as practicable, but in no case more than 48 hours from the date of emergency.

U. Bond. Upon approval of the application and prior to the issuance of a permit, the owner of each wireless communications facility shall, at its own cost and expense, obtain from a surety licensed to do business in the state and maintain a bond, or other form of security acceptable to the Borough Attorney, in an amount of $10,000 for each such wireless communications facility to assure the faithful performance of the terms and conditions of the Borough Code and as a guarantee that no such installation or equipment exceeds or will exceed the allowable FCC limits for radio frequency emissions and radiation exposure to the general public. The bond shall provide that the Borough may recover from the principal and surety any and all compensatory damages incurred by the Borough for violations, after reasonable notice and opportunity to cure. The owner shall file a copy of the bond with the Borough, and the bond shall be held and maintained during the entire period of the owner's operation of each wireless communications facility.

V. Inspection. The Borough shall possess the right to inspect any wireless communications facility to ensure compliance. The Borough and/or its agents shall have the authority to enter the property upon which a wireless communications facility is located at any time, upon reasonable notice to the operator, to ensure such compliance. If, upon inspection, the Borough concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.

W. Insurance requirements. All applicants shall be required to provide proof of and maintain comprehensive general liability insurance covering the wireless communications facility in the minimum coverage amount of $2,000,000 for any one claim and $3,000,000 for any aggregate claim for each wireless communications facility location. The insurance policy shall name the Borough as an additional insured. The existence of any available and/or applicable insurance shall not waive or release the applicant from the obligations set forth in the required indemnification agreement included in the application.

X. Indemnification. All applicants shall be required to execute an indemnification agreement in the form required and pursuant to which the owner shall agree to defend, hold harmless, and indemnify the Borough, its officers, employees, agents, attorneys, volunteers, and independent contractors to the fullest extent under the law.

§ 16.53.150 Relocation or removal of facilities.

[9-22-2020 by Ord. No. 2020-16]

Within 60 days following written notice from Borough, or such longer period as the Borough determines is reasonably necessary or such shorter period in the case of an emergency, an owner of utility-pole-based wireless communications facility in the ROW shall, at its own expense, temporarily or permanently remove, relocate, change, or alter the position of any wireless communications facility when the Borough, consistent with its police powers and applicable regulations, shall determine that such removal, relocation, change, or alteration is reasonably necessary under the following circumstances:

A. The construction, repair, maintenance, or installation of any Borough or other public improvement in the ROW;

B. The operations of the Borough or other governmental entity in the ROW;

C. Vacation of a street or road or the release of a utility easement; and/or

D. An emergency, as determined by Borough.

§ 16.53.160 Existing nonconforming wireless communications facilities.

[9-22-2020 by Ord. No. 2020-16]

Nonconforming wireless communications facilities, antennas, and/or wireless communications support structures that are damaged or destroyed may not be rebuilt without first obtaining the appropriate approval from the appropriate approving authority and without having to meet the requirements of the Borough Code.

§ 16.53.170 Annual recertification requirements for all wireless communications facilities.

[9-22-2020 by Ord. No. 2020-16]

All wireless communications facilities shall comply with the following annual recertification requirements.

A. Each year on July 1, the owner shall submit an affidavit which shall list all active wireless communications facilities it owns within the Borough by location and certifying that a) the required insurance is maintained and provide a copy of the certificate of insurance per installation and b) each wireless communications facility has been inspected for safety and found to be in sound working condition and in compliance with all federal safety regulations concerning radio frequency exposure limits.

B. The Borough shall have the right to employ a qualified radio frequency engineer to conduct an annual random test of wireless communications facilities to ensure their compliance with all FCC radio frequency emission limits as they pertain to exposure to the general public. The cost of such tests shall be paid by the owner of the wireless communications facilities.

1. In the event that such independent tests reveal that a wireless communications facility is emitting radio frequency emissions or radiation in excess of FCC exposure guidelines as they pertain to the general public, the Borough shall notify the owner and all residents living within 1,500 feet of the wireless communication facility of the violation, and the owner shall have 48 hours to bring the wireless communications facility into compliance. Failure to bring the wireless communications facility into compliance shall result in the forfeiture of the bond, and the Town shall have the right to 1) terminate the approval and/or 2) require the removal of such wireless communications facilities in the sole discretion of the Borough.

C. The owner shall pay an annual fee set forth in § 16.53.060B per active wireless communications facility.

D. Any wireless communications facility that is no longer in use shall be removed by the owner within 60 days of submission of the annual recertification affidavit, at the owner's expense.

1. Any wireless communications facility that is not removed within 60 days after being listed as no longer in use in the annual recertification affidavit shall be subject to a fine of $100 per day until such installation is removed.

E. Where such annual recertification has not been timely submitted, or equipment no longer in use has not been removed within the required sixty-day period, no further applications for wireless communications facilities shall be accepted until such time as the annual recertification has been submitted and all fees and fines paid.

§ 16.53.180 Nonpermitted installations.

[9-22-2020 by Ord. No. 2020-16]

Any wireless communications facilities constructed, erected, modified, or enhanced prior to the issuance of the required approval set forth in this chapter shall be removed prior to the submission of an application. No consideration of any application for a wireless communications facility shall be made, and no so-called "shot clock" for approval shall commence while such unauthorized installations remain.

§ 16.53.190 Enforcement, violations, and penalties.

[9-22-2020 by Ord. No. 2020-16]

A. A separate and distinct violation shall be deemed to be committed each day on which a violation occurs or continues to occur. In addition to an action to enforce any penalty imposed by this section and any other remedy at law or in equity, the Borough may apply to a Federal District Court for an injunction or other appropriate relief at law or in equity to enforce compliance with or restrain violation of any provision of this chapter.

B. A violation of this chapter shall be punishable as provided in Title 1, General Provisions, Ch. 1.08, General Penalty.

§ 16.53.200 Miscellaneous.

[9-22-2020 by Ord. No. 2020-16]

A. Police powers. The Borough, by granting any permit or taking any other action pursuant to this section, does not waive, reduce, lessen, or impair the lawful police powers vested in the Borough under applicable federal, state, and local laws and regulations.