[Added 4-27-2021 by Ord. No. 2021-11]
a. 
The provisions set forth in Sections 4A-70 through 4A-80 shall be termed the "Small Wireless Facilities Ordinance." Any reference to the "ordinance" contained herein shall refer to the small wireless facilities Ordinance.
b. 
To the extent the small wireless facilities Ordinance conflicts with any other ordinance provision, including any other provision in Chapter 4A, outside of the small wireless facilities Ordinance, the small wireless facilities Ordinance shall govern.
c. 
If any section, subsection or paragraph of this article be declared unconstitutional, invalid or inoperative, in whole or in part, by a court of competent jurisdiction, such chapter, section subchapter or paragraph shall to the extent that is not held unconstitutional, invalid or inoperative remain in full force and effect and shall not affect the remainder of this article.
[Added 4-27-2021 by Ord. No. 2021-11]
The following definitions shall be applicable to the provisions of the ordinance:
a. 
All definitions of words, terms and phrases that are set forth in the Communications Act of 1934, P.L. 73-416, as amended by various statutory enactments including, but not limited to, the Telecommunications Act of 1996, P.L. 104-104, are incorporated herein and are made apart hereof.
b. 
All definitions of the words, terms and phrases that are set forth in the portion of the Middle Class Tax Relief and Job Creation Act of 2012, P.L. 112-96, as codified in 47 U.S.C. § 455, are incorporated herein and are made a part hereof.
c. 
All definitions of words, terms and phrases that are set forth in the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., are incorporated herein and are made apart hereof.
d. 
All of the definitions of words, terms and phrases that are set forth in the Code of Federal Regulations at 47 CFR § 1.6002, as amended, are incorporated herein and are made a part hereof.
e. 
In addition to the foregoing, the following words, terms and phrases shall have the meanings indicated unless an alternate meaning clearly is discernable from the context in which the word, term or phrase is used:
APPLICANT
A person or entity that applies for an SWF permit.
APPLICATION
All of the document(s) submitted by an applicant in furtherance of obtaining an SWF permit.
PERSONAL WIRELESS SERVICES
As defined in 47 U.S.C. § 332(c)(7)(C), as supplemented and/or as amended.
PUBLIC RIGHT-OF-WAY
The surface, the airspace above the surface and the area below the surface of any street, road, highway, lane, alley, boulevard or drive, including the sidewalk, shoulder and area for utilities owned by the Township of Holmdel within an easement to the public or other easement owned by the Township of Holmdel.
SMALL WIRELESS FACILITY
As defined in the Code of Federal Regulations at 47 CFR § 1.6002(1), as supplemented and/or as amended.
SMART POLE
A decorative utility pole that conceals, disguises or camouflages one or more small wireless facility installation(s) and may include other features, such as street lighting, 911 call service access, public access Wi-Fi and surveillance cameras. A smart pole must allow for multiple occupants and allow space for municipal use for other services and/or equipment. Smart poles shall neither have external laches, external hinges, nor external cabling.
SWF PERMIT
A permit required pursuant to the provisions of this article, and as further defined in Section 4A-72.
UTILITY POLE
A wooden or metal pole that is used by public utilities to support electrical wires, telephone wires, coaxial cables, fiber-optic cables and like and similar appurtenances.
f. 
In the event that a term, word or phrase is not defined in any of the aforementioned statutes and is not otherwise defined herein, then that term, word or phrase shall have its common, ordinary meaning.
[Added 4-27-2021 by Ord. No. 2021-11]
a. 
No person or entity shall place a small wireless facility in any public right-of-way without obtaining a small wireless facility permit ("SWF permit") and the Township's consent to utilize the public rights-of-way within the Township, upon the terms set forth in this article.
b. 
No approval or consent granted, or SWF permit issued, pursuant to this article shall confer any exclusive right, privilege, license or franchise to occupy or use any public right-of-way within the Township of Holmdel for the delivery of telecommunications services or for any other purpose. An SWF permit authorizes an applicant to undertake only certain activities in accordance with this article.
c. 
Any improvements authorized under an SWF permit shall be exempt from requiring any other license requirement under Chapter 4A of the Revised General Ordinances of the Township of Holmdel.
[Added 4-27-2021 by Ord. No. 2021-11]
a. 
No application for an SWF permit shall be approved if the application proposes a small wireless facility to be installed upon any structure within any public right-of-way unless the installation is upon:
1. 
A new smart pole that:
(a) 
Satisfies the definition of smart pole established in this article;
(b) 
Is consistent with the aesthetic requirements specific to smart poles, if any such standards exist by ordinance or resolution of the Township Committee, or is otherwise approved for aesthetic purposes by the Township Committee;
(c) 
Is specifically designed to accommodate the reasonable and customary equipment necessary for a small wireless facility installation; and
(d) 
Will accommodate at least three carriers per smart pole; or
2. 
A utility pole:
(a) 
That was installed on or before the date that this article was adopted; and
(b) 
The small wireless facility complies with the Township's aesthetic requirements specific to the installation of small wireless facilities upon preexisting utility poles, if any such standards exist by ordinance or resolution of the Township Committee, or is otherwise approved for aesthetic purposes by the Township Committee.
b. 
No application for an SWF permit involving installation of a new smart pole, utility pole, or related infrastructure shall be approved unless the applicant provides a certification made in good faith, based upon the assessment of a licensed engineer, and containing a written summary of the basis of such determination, that after diligent investigation it cannot meet its service objectives by collocating on an existing smart pole or utility pole upon which:
1. 
The wireless provider has the right to collocate subject to reasonable terms and conditions, including the right to pole mount antenna equipment; and
2. 
That collocation would not impose technical limitations or significant additional costs.
c. 
No application for an SWF permit shall be approved for a siting that does not comply with any of the following restrictions:
1. 
No small wireless facility shall be located within 500 feet of another small wireless facility unless it can be established by clear and convincing evidence in the judgment of the Township that co-location on an existing or previously approved small wireless facility is not feasible. The applicant shall possess the burden of proof to establish and prove any claims of technical incompatibility or inability to collocate.
2. 
No small wireless facility, smart pole, or related infrastructure shall be installed or maintained in a manner that obstructs or hinders the usual travel or public safety in a right-of-way or obstructs the legal use of a right-of-way by a public utility, as defined in N.J.S.A. 48:2-13.
3. 
No small wireless facility shall interfere with the safe operation of traffic control equipment.
4. 
No small wireless facility shall interfere with sight lines or clear zones for transportation or pedestrians.
5. 
No small wireless facility shall interfere with compliance with the federal Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., or any similar federal or state standards regarding pedestrian movement.
d. 
The Township may condition the issuance of an SWF permit for small wireless facilities, smart poles, utility poles, and/or related infrastructure upon aesthetic requirements, which may be adopted by ordinance or resolution of the Township Committee, provided as follows:
1. 
The aesthetic requirements shall be technically feasible and reasonably directed at avoiding or remedying unsightly or out-of-character deployments, are no more burdensome than those applied to functionally equivalent infrastructure deployments, and are published in advance.
2. 
Any design or concealment measures are not considered a part of the small wireless facility for purposes of the size parameters in the definition of small wireless facility.
3. 
The Township may only issue a denial for not complying with an aesthetic requirement only if the Township finds that the denial does not prohibit or has the effect of prohibiting the provision of wireless service.
[Added 4-27-2021 by Ord. No. 2021-11]
a. 
Application filing. An application for an SWF permit to place one or more small wireless facility(ies) within a right-of-way shall be made on forms which shall be available from the office of the Township Clerk. The application, along with the required application fee and the required escrow fee, shall be filed with the Township Clerk. Immediately upon receipt of an application, the Township Clerk shall provide copies of the application and all supporting documents that were submitted by the applicant with the application, to the Township Engineer, the Construction Official and the Township Attorney.
b. 
Application form. The SWF permit application shall be made by an applicant, such as a provider of personal wireless services, or its duly authorized representative, as noted in a notarized statement from the provider of personal wireless services on whose behalf the representative is acting, and shall contain the following:
1. 
The applicant's name, address, telephone number and e-mail address;
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 small wireless facility, existing structure, and new structure work to be performed. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with particular emphasis on those matters, including, but not limited to, subservice utilities likely to be affected or impacted by the work proposed along with a description of such other governmental permits or approvals as may be required by applicable law with respect to the proposed installation(s) and a description of such other permits or approvals for which the applicant has applied;
4. 
Authorization for any consultant acting on behalf of the applicant to speak with the Township, or a designee of the Township, on the area of consultation for the applicant even if the applicant cannot be available;
5. 
Verification from an appropriate professional that the small wireless facility shall comply with all applicable federal, state and local laws, administrative regulations and codes;
6. 
The applicant shall certify that they shall market the availability of approved facilities to all major wireless carriers in the marketplace. The applicant shall further certify that they will encourage, manage, and coordinate the location and placement of any interested carrier's equipment on their structure;
7. 
The Township may require that additional information be provided in order to evaluate the application, provided the requested additional information does not generally exceed the demands imposed pursuant to Section 4A-8.
c. 
An applicant seeking to deploy a network of small wireless facilities, all of which are to be located in rights-of-way, may file a batched application for up to 25 small wireless facilities and receive a single permit for said small wireless facilities.
d. 
The Township shall review the application for a small wireless facility permit in light of its conformity with the provisions of this article, and shall approve a permit on nondiscriminatory terms and conditions subject to the following requirements:
1. 
Within 10 days of receiving an application, the Township Clerk shall determine and notify the applicant:
(a) 
Whether the application is complete;
(b) 
If the application is incomplete, what specific information is missing; and
(c) 
Whether the deployment of the small wireless facilities, as proposed, requires the applicant to apply for other permits, such as a street opening permit or construction permit, for which the applicant has not yet applied.
2. 
No small wireless facility permit application shall be deemed complete until the applicant has applied for all other permits and approvals required by all other laws and regulations that are applicable to the applicant's proposed small wireless facility deployment.
e. 
Timeframes.
1. 
The Township shall make its final decision to approve or deny the application within the following timeframes:
(a) 
Sixty days from the submission of a complete application to install a small wireless facility upon one or more existing structures.
(b) 
Ninety days from the submission of a complete application to install a small wireless facility upon one or more new structures.
(c) 
Ninety days from the submission of a complete batched application to install small wireless facilities upon both existing and new structures.
2. 
The timeframes described above shall be tolled during any period in which the applicant is notified that it has not submitted a complete application.
3. 
The timeframes described above by which an application shall be either approved or denied may be extended by mutual consent of the applicant and Township. Such consent on behalf of the Township may be exercised by the Township Administrator in his/her reasonable discretion.
f. 
The Township may issue a final decision approving an application conditioned upon the applicant's satisfaction of certain requirements in order to comply with the provisions of this article.
g. 
The Township shall notify the applicant, in writing, of the final decision, and if the application is denied, the denial shall specify the basis for denial, including any relevant provisions of law resulting in such determination.
h. 
The applicant may cure deficiencies identified by the Township in its denial within 30 days of the denial, without paying an additional application fee, and the Township shall approve or deny the revised application within 30 days of receipt of same.
i. 
If the Township fails to act upon an application within the timeframes prescribed by this section, the applicant may provide written notice to the Township that the application review and decision period has lapsed. Upon receipt of such notice, Township Committee, by resolution adopted no later than its second regularly scheduled public meeting next following receipt of the notice, shall either deny the application or direct that the permit shall be approved and issued. Nothing in this subsection is intended in any way to impact any other right or remedy that may be available to the applicant under applicable federal or state law if the Township fails to act upon an application within the timeframes prescribed by this section.
j. 
Upon approval of an SWF permit authorizing placement of a small wireless facility in a public right-of-way, the SWF permit shall not be issued by the Township Clerk to the applicant unless and until:
1. 
All SWF permit application fees and escrow fees, as established herein, have been paid.
2. 
All other governmental permits or other governmental approvals that are required for the deployment(s) proposed by the applicant's permit application by any other applicable federal, state or municipal law have been issued have been fulfilled, including, but not limited to, those required under the New Jersey Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq., and the administrative regulations adopted thereunder, Holmdel Township Ordinance Section 17-1 titled "Excavations in Streets," and Holmdel Township Ordinance Sections 4A-51 to 4A-69, which are hereby made applicable to improvements authorized by an SWF permit. The applicant shall supply copies of such other permits or approvals to the Township Clerk for inclusion with the applicant's application documents.
3. 
The applicant has entered into a right-of-way use agreement, which has been approved by Township Attorney as to legal form and adopted by resolution of Township Committee.
[Added 4-27-2021 by Ord. No. 2021-11]
a. 
No SWF permit issued under this article shall be valid for a period longer than 12 months, unless construction has actually begun and continuously and diligently is pursued to completion. Upon written request from the applicant, the Township Administrator, upon consultation with the Construction Official, may extend the permit for a period of up to 12 months so long as construction has begun at the time that the applicant's request for an extension is made.
b. 
All SWF permits and actions therefrom shall be generally subject to the provisions of this article and Sections 4A-26 to 4A-50.
[Added 4-27-2021 by Ord. No. 2021-11]
a. 
A small wireless facility permit shall not be required for:
1. 
Routine maintenance of a small wireless facility;
2. 
The replacement of a small wireless facility with another small wireless facility that is substantially similar or smaller in size, weight and height to the small wireless facility that is being replaced, except a replacement that includes replacement of the structure to which the small wireless facility is attached.
b. 
Notwithstanding the foregoing, at a location where the Township and/or another provider has co-located equipment or facilities, any routine maintenance or replacement that is done shall not occur until written authorization to proceed from the Township or entity with co-located equipment or facilities, as the case may be, which consent shall not unreasonably be withheld.
[Added 4-27-2021 by Ord. No. 2021-11]
a. 
All applications for approval and issuance of a SWF permit pursuant to this article shall be accompanied by a fee as follows:
1. 
For applications that do not include the installation of any new structures within a right-of-way, the application fee shall be $500 for up to five small wireless facilities, with an additional $100 for each small wireless facility beyond five in quantity.
2. 
For applications that include the installation of a smart pole or similar structure within a right-of-way, the application fee shall be $1,000 for each.
b. 
In addition to the application fee, all applications for approval and issuance of a SWF permit shall be accompanied by an escrow fee of $5,000. Any applications requiring a street opening shall additionally be subject to such applicable escrow established in ordinance.
c. 
The escrow account deposits provided in Subsection b are required to pay for the costs of professional services, including engineering, planning, legal and other third-party professional consulting expenses connected with the review of submitted materials, including any traffic engineering review or other special analyses related to the Township's review of the materials submitted by the applicant and the preparation of any reports or any necessary legal agreement regarding rights-of-way use. An applicant is required to reimburse the Township for all fees, costs and expenses of third-party professionals and consultants incurred and paid by the Township for the review process of a small wireless facility permit application, such as, but not limited to:
1. 
Professional fees for reviews by third-party professionals or consultants of applications, plans and accompanying documents;
2. 
Issuance of reports or analyses by third-party professionals or consultants to the Township setting forth recommendations resulting from the review of any documents submitted by the applicant;
3. 
Charges for any telephone conference(s) or meeting(s), including travel expenses, requested or initiated by the applicant, the applicant's attorney or any of the applicant's experts or representatives;
4. 
Review of additional documents submitted by the applicant and issuance of reports or analyses relating thereto;
5. 
Review or preparation of right-of-way use agreements, easements, deeds, right-of-way municipal consent ordinances or resolutions and any and all other like or similar documents; and
6. 
Preparation for and attendance at all meetings by third-party professionals or consultants serving the Township, such as the Township Attorney, Township Engineer and Township Planner or other experts as required.
d. 
The escrow account deposits provided in Subsection b shall be placed in a separate account by the Township's Chief Financial Officer at the request of the Township Clerk, and an accounting shall be kept of each applicant's deposit. Thereafter:
1. 
All third-party professional or consultant fees, costs, expenses and charges shall be paid from the escrow account and charged to the applicant;
2. 
Upon either final denial of a small wireless facility permit application or upon issuance of a small wireless facility permit, any monies not expended for third-party professional or consulting services shall be returned to the applicant within 90 days upon written request by the applicant and as authorized by the Township Committee;
3. 
If at any time during the application review process 75% of the money originally posted shall have been expended, the applicant shall be required to replenish the escrow deposit to 100% of the amount originally deposited by the applicant;
4. 
No small wireless facility permit application shall be considered complete until such time as the required escrow fee has been posted to guarantee payment of third-party professional or consultant fees, costs, expenses and charges;
5. 
All payments charged to the escrow deposit shall be pursuant to vouchers from the third-party professionals or consultants stating the hours spent, the hourly rate, and the fees, costs, expenses and charges incurred;
6. 
Third-party professionals and consultants submitting charges pursuant to this section shall be permitted to charge for such services at the same rates as they would charge their private clients for like or similar work, provided that:
(a) 
Professional fees are billed at rates that do not exceed such professional fees as are customarily charged by other like professionals and consultants performing similar work within the Township of Holmdel; and
(b) 
Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar basis with no markup being permitted;
7. 
The Township shall render a written final accounting to the applicant on the uses to which the escrow deposit was put. The written final accounting shall include copies of all vouchers that were submitted by third-party professionals and consultants and paid by the Township.
[Added 4-27-2021 by Ord. No. 2021-11]
An applicant whose SWF permit includes the installation of any new smart pole structure shall provide the Township with access to any of the technological features that are a component of the new smart pole structure, such as, for example, public access Wi-Fi, 911 call service or security cameras, before the applicant offers such access to any other person or entity. Should the Township decide to utilize any such technological features, then the Township, on an annual basis, shall reimburse the applicant or the subsequent owner of the structure, the costs, on a dollar-for-dollar basis, of providing the Township with such access. Such costs shall be limited to the costs of providing electricity to the components used by the Township and the costs of any repairs required to be made to the components used by the Township, unless the repair costs are necessitated by the acts of the applicant or subsequent owner of the structure, without regard to whether such acts are negligent or intentional.
[Added 4-27-2021 by Ord. No. 2021-11]
Any person or entity found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this article shall be subject to the penalties stated in Chapter 1, Section 1-5.
[Added 4-27-2021 by Ord. No. 2021-11]
Nothing contained in this article shall be construed as limiting any judicial remedies that the Township may have, at law or in equity, for enforcement of this article.