Village of Ridgewood, NJ Article II Governance of Deployment in the Public ROW

§ 251-4 General provisions of agreement for access to public ROW.

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

B. Notice prior to any non-emergency work.

(1) Designee. The designee will serve as the initial point of contact for the Village for all matters pertaining to this section.

(2) Notice required. No action, application, installation, alteration, upgrade, replacement or modifications by applicant contemplated by this section shall be commenced without first giving notice to the Village designee.

(3) This notice requirement does not pertain to ordinary maintenance, repairs, and like-for-like equipment swap outs that do not increase the dimensions or electromagnetic profile of the small wireless facility. This work may be performed without giving notice to the designee.

(4) Emergency work. Work that is of an urgent and immediate nature, such as a network outage or an imminent safety hazard, shall not be required to meet the notice provisions of this subsection, subject only to providing notice to the designee as soon as is practicable for the emergency work either about to be performed, currently underway or having been performed, and then providing a brief summary of the work completed, including the replacement or removal of any components of the applicable small wireless facility or facilities. Any such emergency work shall be subject to administrative review, after the fact, only if the nature and scope of said work exceeds that which may be reasonably construed as maintenance and repair work. The below terms and conditions utilized for notice for ordinary maintenance shall govern after-the-fact review for emergency work in these instances.

(5) Notice for ordinary maintenance. As noted in Subsection B(3) above, notice to the designee is not required for ordinary maintenance and repairs. However, designee reserves the right to inspect applicant's small wireless facilities at any time in order to determine if the existing configuration matches the configuration contained in the most recently issued small cell permit, and any applicable right-of-way agreement and the attached schedules.[1] Applicant shall bear no costs for said inspections. However, if it is determined that an existing small wireless facility is found to be larger than the dimensions specified in the most recently issued applicable small cell permit, then applicant shall be in violation of this chapter pursuant to § 251-15. Applicant shall receive notice from the Village and, upon receipt of such notice, be required to restore the site within 10 days to the configuration of the most recently approved small cell permit or removed or retroactively apply for administrative approval for the unapproved modifications. In such instances, Applicant will be responsible for costs and fees incurred by the Village designee to perform inspections and review.

[1] Editor's Note: Said schedules are included as attachments to this chapter.

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

(1) Fees and rates. As consideration to the Village 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,[2] 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.

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

(2) 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 any amount in excess of the escrow shall be invoiced to applicant directly upon completion.

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

(b) 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. Ordinary maintenance and repairs does not trigger any one-time fees.

(3) Annual ROW occupancy rate shall be as specified in Schedule A of this chapter 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 Village and applicant.

(4) Annual attachment rate, equal to an amount that represents a reasonable approximation of the objectively reasonable costs incurred by the Village for the attachment of each small wireless facility to Village-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 Subsection C(2)(a) and (b) combined shall not exceed $270 annually per small wireless facility location.

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

(6) Make-ready fee, shall be determined on a site-specific, engineering basis, for work reasonably necessary to make a particular Village pole suitable for attachment of the applicable communications facility shall be paid upon submission of the application as more particularly described in § 251-6E below.

D. Other terms.

(1) Term. Unless otherwise agreed to in writing by the Village and applicant, the agreement term shall be 10 years.

(2) Safety and accessibility. The applicant will demonstrate compliance with applicable safety and accessibility requirements, including those under Americans with Disabilities Act (ADA),[3] OSHA and similar laws.

[3] Editor's Note: See 42 U.S.C. § 12101 et seq.

(3) 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 Village 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.

(4) RF safety reports. Applicant shall provide, as part of the initial request to install small wireless facilities via municipal ROW agreement and any associated application, a copy of a health and safety report evidencing compliance with FCC requirements concerning electromagnetic radiation emissions. Along with any application to modify, enhance or add equipment to a small wireless facility that alters that facility's electromagnetic emissions profile, applicant will provide an updated health and safety report which reflect the most recent electromagnetic emissions levels.

(5) Indemnification and insurance requirements.

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

(b) Indemnification. Applicant, its successors, assigns, contractors, subcontractors, agents, servants, officers, employees, designees, guests and invitees, hereby indemnify, defend and hold harmless the Village, 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 chapter 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 Village, 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 Village 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 chapter. This indemnification shall also specifically include that the Village retains the right to choose its own defense counsel in regard to any action at law or equity pursuant to this section.

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

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

(8) Nondiscriminatory. Applications will be processed on a nondiscriminatory basis.

§ 251-5 Permitted communications facility uses/administrative review; application.

A. 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 Village as set forth in § 251-4C above, and administrative review and the issuance of a small cell permit as set forth in this § 251-5. All such uses shall be in accordance with all other applicable provisions of this section, including without limitation, those set forth in § 251-8 below.

(1) Co-location of a small wireless facility.

(2) Co-location that qualifies as an eligible facilities request.

(3) 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 § 251-11 below.

(4) 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 section.

(5) Construction of a communications facility, other than those set forth in Subsection A(1), (2) or (3) in this § 251-5, 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.

(6) Any upgrade, replacement, modification or alteration of a communications facility, with each instance of alteration, modification or upgrade being a separate instance subject to administrative review.

(7) The Village reserves and retains the general right to subject any installation or modification contemplated in this chapter to discretionary review subject to the sixty- and ninety-day shot clock guidelines specified in FCC-18-133A. This may include public hearings and Zoning Board of Adjustment approval. The shot clock guidelines will be adhered to for any discretionary review process unless compelling and extraordinary circumstances suggest otherwise.

(8) 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 190, Land Use and Development.

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

C. Proprietary or confidential information in application. The Village shall make accepted applications publicly available by reasonably available means such as a request pursuant to the Open Public Records Act (OPRA).[1] 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 Village shall treat the information as proprietary and confidential, subject to applicable state and local "freedom of information" or "sunshine" laws and the Village'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 section, open and available for public inspection, including proposed communications facilities' site locations.

[1] Editor's Note: See N.J.S.A. 47:1A-1 et seq.

D. Administrative review application requirements. The application shall be made by the applicable wireless service provider or its duly authorized representative and shall contain the following and may be in form and substance substantially the same as the attached Schedule B of this chapter:[2]

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

(2) The names, addresses, telephone numbers, and email addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application.

(3) 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.

(4) 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 Village ordinances.

(5) 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 per § 251-4C for the section for administrative review and permit issuance.

(6) Applicant shall demonstrate compliance with § 251-11, Design standards, as they pertain to appearance, siting and height of the proposed communications facilities and their support poles, towers or other structures.

(7) 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.

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

E. 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.

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

G. Application fees. Unless otherwise provided by applicable laws, all applications pursuant to this section shall be accompanied by the escrow amounts required under § 251-4C(2) above and Schedule A[3] which shall be used to cover one-time fees associated with application review and processing, and for which amounts in excess of the escrow shall be billed directly to the applicant.

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

§ 251-6 Action on administrative review applications.

A. Review of applications for administrative review.

(1) The Village shall review the application in light of its conformity with applicable provisions of this section, and shall issue a Small cell permit on nondiscriminatory terms and conditions, subject to the following requirements:

(a) The Village must act consistent with the following shot clock dates:

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

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

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

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

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

[1] For an initial application to deploy small wireless facilities, if the Village 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 Village to render the application complete.

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

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

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

[c] But only if the notice pursuant to Subsection A(1)(b)[2][a] of this section is effectuated on or before the 30th day after the date when the application was submitted; or

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

[a] The day after the date when the Village 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 Village's original request under Subsection A(1)(b)[1] and [2] of this section; until

[b] The date when the applicant submits all the documents and information identified by the Village to render the application complete;

[c] But only if the notice pursuant to Subsection A(1)(b)[3][a] 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 Village's request under Subsection A(1)(b)[1] and [2] of this section.

(2) Final decision by Village. The Village 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 Village 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 Village. 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 Village shall be limited to the deficiencies cited in the original denial and any material changes to the application made to cure any identified deficiencies.

B. Undergrounding provisions. The Village shall administer undergrounding provisions in a nondiscriminatory manner. It shall be the objective of the Village 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 Village undergrounding requirements that 1) are in place and published prior to the date of initial filing of the application, and 2) prohibit electric, telecommunications and cable providers from installing aboveground horizontal cables, poles, or equivalent vertical structures in the public ROW; and the Village 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 Village (which consent may not be unreasonably withheld, conditioned or delayed) or, alternatively, the wireless service 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. 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 administrative review permitted use status, and subject to non-recurring and recurring fees and rates.

C. Effect of permit.

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

(2) Duration. Any permit for construction issued under this section 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.

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

(1) Notice. Within 90 days following written notice from the Village, 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 Village has determined that such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any Village improvement in or upon, or the operations of the Village 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-1 et seq., or any council resolution that approves any redevelopment plan for work that is performed by a private company other than the Village. The Village shall apply the same standards to all utilities in the public ROW.

(2) Emergency removal or relocation of facilities. The Village retains the right and privilege to cut power to or move any communications facility located within the public ROW of the Village, as the Village may determine to be necessary, appropriate or useful in response to any public welfare emergency, or safety emergency. If circumstances permit, the Village 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.

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

(a) Prior to commencing reconditioning work, the Village 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 facilities from the consequences of the reconditioning work, including but not limited to paint and debris fallout. The Village reserves the right to require the provider to remove all of the provider's communications facility from the Village 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 Village will provide the provider with a date by which its equipment must be protected or removed. The provider may request a modification of the Village procedures for carrying out reconditioning work in order to reduce the interference with provider's operation of its communications facility. If the Village agrees to the modification, the Provider shall be responsible for all reasonable incremental cost related to the modification.

(b) If the Village poles need to be replaced ("replacement work"), the Village shall provide provider with at least 60 days' written notice to remove its communications facilities. The Village shall also promptly notify provider when the Village poles have been replaced and provider may reinstall its equipment. During the replacement work, the provider may maintain a temporary communications facility on or nearby in the public right-of-way, with the specific temporary location to be approved by the Village, or on nearby private property, or on any land owned or controlled by Village, in the vicinity of the property. If alternative locations in the public right-of-way or on nearby public or private 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 Village.

(c) If the Village poles need to be repaired due to storm or other damage ("repair work"), the Village shall notify the provider to remove its communications facilities as soon as possible. In the event of an emergency, the Village shall contact the provider by telephone at its emergency contact of record upon or prior to removing the provider's equipment. Once the Village poles have been replaced or repaired, the Village will promptly notify the provider that it can reinstall its equipment. During Village repair work, the provider may maintain a temporary communications facility on the public right-of-way or nearby property, subject to approval of the applicable property owner, or after approval by provider, on any land owned or controlled by the Village 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 Village.

E. Attachment to Village poles in the public ROW.

(1) Make-ready requirements. For any attachment to Village poles in the public ROW, the Village shall provide a good-faith estimate for any make-ready work necessary to enable the Village 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 Village-owned 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)[1] 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. Village 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 Village. If Village 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 Village pole, applicant may perform the work itself consistent with Village approval under this section.

[1] Editor's Note: See N.J.S.A. 40A:11-1 et seq.

§ 251-7 Applications requiring discretionary review and approval.

Discretionary review required. All other uses not expressly set forth or referenced in § 251-5 above shall require compliance with applicable Village ordinance, including, but not limited to, those contained in Chapter 190, Land Use and Development, and any other applicable laws and ordinances of the Village.

§ 251-8 Other public ROW installation requirements.

A. General principles.

(1) Reasonable placement limitations. The Village 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 Village 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.

(2) Fewest possible new poles/use of existing poles. In compliance with the design standards contained herein, 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.

(3) Leasing of excess space in ducts, conduits and on poles 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 Village.

(4) Due care and safe work practices. 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 Village 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 on and under the streets of the Village shall be kept and maintained in a safe and well-ordered condition, and in good order and repair. Due care during construction, maintenance and modifications shall include the following:

(a) Any applicant 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 Village work site evaluation process by which the construction office may refer 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.

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

(c) 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.

(5) Interference with 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.

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

(7) Call before you dig provision. 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.

(8) Abandonment of facilities.

(a) Any occupant of the public ROW, including any applicant, wireless provider or wireless infrastructure provider, that intends to permanently discontinue use of any of its communications facilities, poles or support structures within the public ROW shall notify the Village, 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 Village will choose from the following options within 14 days or any other agreed upon option, and so notify the occupant of its decision:

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

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

B. Additional requirements.

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

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

(b) Pedestrian and vehicular traffic and safety requirements established by the Village.

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

(2) Additional permits. In addition to obtaining a small cell 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:

(a) Notification to Village designee for all work contemplated in this chapter, pursuant to § 251-4.

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

(c) Zoning permit, if applicable, per this chapter and the applicable provisions of the Village land use regulations, including those contained in Chapter 190, Land Use and Development.

(d) Street opening permit, if applicable, per Village code Chapter 249, Streets and Sidewalks.

(e) Telecommunications consultation and review performed by the designee or other such official of the Village or professional contracted by the Village, 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 the Village Engineer or outside consultant, as needed or applicable.

(g) Discretionary review: for small wireless facility and pole applications not subject to administrative review pursuant to this section.

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

(1) Applicants will work with the Village Engineer to coordinate and protect existing utilities in the public ROW.

(2) Applicants will coordinate with the designee and Village Engineer, as applicable, to detail 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 Village disturbance.

§ 251-9 Attachment to and replacement of decorative poles.

Notwithstanding anything to the contrary in this chapter, the Village may request that applicant install a small wireless facility on a new decorative pole, or replace an existing pole with a 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:

A. Issuance of a permit under § 251-5 above.

B. 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 judgment of the Village.

§ 251-10 Batch applications.

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

§ 251-11 Design standards.

All aboveground communications facilities in the public ROW requiring administrative review shall conform to the following nondiscriminatory design guidelines:

A. Siting and design requirements:

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

(a) Height. No proposed pole shall be taller than 50 feet or 110% of the height of poles in the surrounding streetscape, whichever is higher. This maximum height includes the pole and any associated small wireless facility or antenna.

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

[1] Is approved pursuant to the provisions of this chapter;

[2] Replaces an existing pole; or

[3] Does not inhibit any existing sight triangles or sight distances; and

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

[5] 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.

[6] Is compliant with Chapter 249, Streets and Sidewalks, of the Revised General Ordinances as well as any applicable local and state laws and regulations pertaining to the installation of utility pole structures in the right-of-way, including promulgated by the Board of Public Utilities requiring approval of proposed locations prior to installation.

(c) Fewest poles possible. Applicant shall minimize the number of new proposed poles in the right-of-way to the fewest possible to meet its coverage and capacity requirements of its client. In addition, to the maximum extent possible while remaining compliant with engineering and structural requirements, Applicant shall make any proposed pole available to the maximum number of additional wireless providers.

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

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

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

[1] Is less than 28 cubic feet in volume; and

[2] 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

[3] Does not inhibit any existing sight triangles or sight distance; and

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

[5] Is a minimum of 150 linear feet from any other existing or proposed small wireless facility, excluding the small wireless facility for which the ground-level cabinet will provide telecommunications functionality.

(c) Fewest ground-level cabinets possible: Applicant shall minimize the number of ground-mounted cabinets and shall affirmatively demonstrate that any applicable pole or support structure is incapable of supporting the proposed equipment cabinet.

(3) Pole-mounted antenna and pole-mounted cabinet siting standards.

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

[1] Does not exceed three cubic feet in volume; and

[2] Is finished and/or painted and/or otherwise camouflaged in conformance with best available stealth technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties; and

[3] Does not increase the height of the proposed or existing pole by 10% or five feet, whichever is greater, to a maximum permitted height of 50 feet or 110% of the height of existing poles in the surrounding streetscape, whichever is greater; and

[4] Is a minimum of 150 linear feet from any other existing or proposed small wireless facility; and

[5] Does not inhibit any sight triangles or sight distance; and

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

[7] Pole-mounted cabinets are permitted on existing poles in all residential zones and nonresidential zones provided that each pole-mounted cabinet:

[a] Does not exceed 16 cubic feet; and

[b] Is finished and/or painted and/or otherwise camouflaged in conformance with best available stealth technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties; and

[c] Does not inhibit any sight triangles or sight distance; and

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

(b) Fewest small wireless facilities possible. Applicant shall minimize the number of new proposed small wireless facilities in the right-of-way to the fewest possible to meet its coverage and capacity requirements of its client.

(4) Additional provisions for small wireless facilities on existing utility distribution poles.

(a) Small wireless facilities, subject to administrative review, may be placed in the public right-of-way on top of existing utility poles in excess of the height requirements specified in the above design standards subject to the following requirements:

[1] Each small wireless facility and its associated supporting utility pole shall not exceed five above the tallest existing pole or utility pole within 500 feet in place as of the application date, or shall not exceed 10 feet above same, only if required pursuant to electrical utility pole separation requirements.

[2] In no event shall the combined height of the small wireless facility and its associated utility distribution pole exceed 55 feet in height.

[3] Any proposed height above 50 feet shall be subject to administrative review by the Zoning Board of Adjustment and Planning Board.

[4] Discretionary approval is required for any proposed small wireless facility that does not meet the above standards.