[Adopted 8-17-2021 by Ord. No. 1596]
The Borough Council finds, determines and acknowledges the following:
A.
It is necessary and appropriate to supplement and/or amend the Stone
Harbor Borough Code to address issues associated with the deployment
of wireless communications facilities in the public rights-of-way.
B.
It acknowledges that wireless communications carriers may enter into
written agreements with parties that have the lawful right to erect
poles in the public rights-of-way pursuant to N.J.S.A. 48:3-18, and
that the consent of the municipality is required pursuant to N.J.S.A.
48:3-19, if the party seeking to install such facilities does not
have an independent lawful right to construct such facilities.
C.
There exists a present need to provide for the deployment of small
wireless facilities throughout the Borough.
D.
The Borough Council of the Borough of Stone Harbor deems it necessary
and appropriate to supplement and/or amend the Borough Code to address
issues associated with the deployment of wireless communications facilities
in the public rights-of-way.
E.
It is in the public interest to encourage the prompt deployment of
communications facilities in order to improve the efficiency and capacity
of communications networks that serve the public.
F.
The purpose of this article is to allow the prompt deployment of
wireless communications facilities in the public rights-of-way while
also effectively managing the rights-of-way in the interests of the
public health, safety and welfare, through the use of co-location
and multi-carrier wireless facilities which minimize the number of
wireless facilities throughout the Borough.
G.
The Borough acknowledges that in connection with the use of those
public rights-of-way under the jurisdiction of the County of Cape
May, municipal consent is required in addition to the consent of the
County pursuant to N.J.S.A. 27:16-6.
H.
The Borough acknowledges that notwithstanding the proscriptions of
47 U.S.C. § 253(a), it has the authority to manage the public
rights-of-way as provided in 47 U.S.C. § 253(c).
A.
For the purposes of this article, the following terms, phrases, words,
and their derivatives shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include
the future, words in the plural include the singular, and words in
the singular include the plural. Any term not defined in this section
shall have the meaning ascribed to it in the New Jersey Municipal
Land Use Law, N.J.S.A. 40:55D-1 et seq., unless the context clearly
requires otherwise. In the event that a term is not defined by this
section, said term shall have its common and/ordinary meaning.
B.
APPLICANT
BOROUGH
CARRIER
CO-LOCATION
COMPETITIVE LOCAL EXCHANGE CARRIERS (CLECs)
(1)
(2)
(3)
CONDUIT
CONSTRUCTION PERMIT
COUNTY
DAY or DAYS
FACILITY or FACILITIES
GOVERNING BODY
MUNICIPALITY
PERMITTEE
PERSONAL WIRELESS SERVICE FACILITIES
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
REVIEW COMMITTEE OF THE BOROUGH or SITE COMMITTEE
SMALL WIRELESS FACILITIES
STEALTH STRUCTURE
(1)
(2)
STREET
THIRD PARTY OPERATOR
UTILITY POLE
ZONING OFFICER
ZONING PERMIT
Definitions:
The entity seeking a Borough permit to construct or install
a wireless facility or facilities in the Borough right-of-way. "Applicant"
shall include a carrier, a competitive local exchange carrier (CLEC)
or other third-party operator as herein defined. The applicant shall
notify its contractors and subcontractors of the requirements of this
article and shall be responsible for any violations of this article
by any of its contractors. "Applicant" shall include the term "permittee"
when required permits have been issued pursuant to this article.
The Borough of Stone Harbor, in the County of Cape May, State
of New Jersey.
Any firm, partnership, association, corporation, limited
liability company, or any other legally recognized organization, licensed
by the Federal Communications Commission to provide personal wireless
services or authorized by the New Jersey Board of Public Utilities
to provide telecommunications services in the State of New Jersey.
The shared use of wireless facilities by more than one wireless
carrier.
A phone company authorized by the New Jersey Board of Public
Utilities (sometimes referred to as "NJBPU") to provide telecommunications
services in direct competition with the incumbent local exchange carriers
(ILECs) and other CLECs using its own wires and facilities or through
wholesale sharing arrangements with other providers. This does not
include wireless carriers.
As an approved CLEC, the carrier receives certain rights and
privileges related to access to rights-of-way, poles and conduits
to place its wires and facilities used only in the provision of landline
telecommunications services.
If CLECs are providing wireless services, which are not within
the Board's jurisdiction, the CLEC must follow federal and local municipal
zoning rules to gain access to rights-of-way, poles and conduits to
provide its wireless services.
If an approved CLEC also provides wireless services or wireless
capacity to a wireless provider, it must obtain local zoning approval
and permits from the municipality.
A casing or encasement for wires or cables.
That permit issued by the Construction Official of the Borough
of Stone Harbor in accordance with the Uniform Construction Code of
New Jersey to permit construction or installation of telecommunications
equipment pursuant to this article.
The County of Cape May, State of New Jersey.
Calendar days unless the text should indicate business days.
Calendar days include Saturday, Sunday, and legal holidays. Business
days shall exclude Saturday, Sunday, and legal holidays.
All structures, devices, equipment and materials, including
but not limited to: antennas, radios and radio cabinets, electrical
wires and cables, fiber optic cables, communications and video cables
and wires, poles, conduits, pads, backup power supply and other components
of personal wireless service facilities, and appurtenances thereto,
located in the public rights-of-way. Each pole mounting set up shall
be a separate facility for regulatory purposes, applications, and
fees.
The Mayor and Borough Council of the Borough of Stone Harbor
in the County of Cape May, State of New Jersey.
The Borough of Stone Harbor, County of Cape May, State of
New Jersey.
The entity to which a permit has been issued pursuant to
this article and a master license agreement for use of public rights-of-way.
This term shall also mean any contractor or subcontractor doing any
work for the carrier.
Equipment at a fixed location that enables personal wireless
service between user equipment and a communications network, including
but not limited to: a) equipment associated with personal wireless
services such as private, broadcast and public safety services, as
well as unlicensed wireless services and fixed wireless services;
and b) towers, radio transceivers, antennas, coaxial or fiber-optic
cable, regular and backup power supplies and comparable equipment,
regardless of technological configuration.
Any technologies defined in 47 U.S.C. § 332(c)(7),
including commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services, provided to
personal mobile communication devices through wireless facilities
or any fixed mobile wireless services provided using personal wireless
facilities.
The surface, the air space 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 or controlled by the Borough of Stone Harbor or the County of
Cape May or within an easement to the public or other easement owned
or controlled by the Borough of Stone Harbor or the County of Cape
May.
That committee established pursuant to § 475-36.
A cellular network facility capable of delivering high transmission
speeds but at lower ranges. "Small" references coverage area, not
their physical size.
A new structure for the mounting of facilities, such as a light
pole with integrated antenna, with aesthetics found to be reasonably
acceptable to the Site Review Committee. Such a structure shall only
be permissible when it is conclusively demonstrated that existing
facilities in the area are not adequate or sufficient and that there
is no practical or feasible alternative to the construction of a stealth
structure. However, even if the applicant conclusively demonstrates
that existing facilities in the area are not adequate or sufficient
and that there is no practical or feasible alternative to the construction
of a stealth structure, the application may be denied if the Borough
determines that the location of the proposed stealth structure is
not appropriate under all of the applicable facts and circumstances
or otherwise fails to meet the requirements of this article. If the
application is denied, the applicant shall be entitled to appeal as
herein provided.
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Cross reference: See §§ 475-36 (Site Committee; Composition; Functions; Appeals); 475-27 (Deviations); 475-22 (Master license agreement; procedure to obtain permits); 475-24 (Conditions and requirements).
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By "reasonably acceptable" is meant that the proposed facility
or facilities must, to the greatest extent possible, duplicate other
structures such as utility poles in the immediate vicinity (e.g.,
similar size, color, height, design) and shall otherwise meet all
the standards established by this article.
Any street, avenue, boulevard, road, parkway, viaduct, drive
or other way as defined in the Municipal Land Use Law, N.J.S.A. 40:55D-7.
An applicant or permittee that is not specifically a licensed
wireless carrier or CLEC that will build, operate and maintain wireless
facilities for the provision of service of one or more wireless carriers.
A tall pole that is used to support telephone wires, electrical
wires, etc.
The Zoning Officer of the Borough of Stone Harbor or his/her
authorized designee, including any Assistant Zoning Officer.
The document signed by the Zoning Officer pursuant to N.J.S.A.
40:55D-18 that is required as a condition precedent to the installation
of an individual facility and which acknowledges that the facility
complies with the provisions of this article, or approved deviation
therefrom.
A.
Use of existing poles.
(1)
A carrier seeking to use the Borough rights-of-way for the installation
of facilities as defined by this article must first execute the master
license agreement approved by the Borough Council.
(2)
Prior to the execution of the Master License Agreement, the carrier
shall provide to the Borough a complete list or inventory of existing
poles within the Borough that the carrier will or may use for the
installation of facilities. Such inventory shall be physically viewed
and inspected by the Borough within 30 calendar days of receipt, and
the carrier shall be notified as to whether the designated poles are
acceptable to the Borough. If any are rejected, the Borough shall
notify the carrier of the pole or poles rejected and the reasons for
rejection. Once the final list is agreed upon by the carrier and the
Borough Administrator, the list shall be submitted to Borough Council
for approval by resolution. Once approved, such approval shall be
good for five years from the date of approval. During such five-year
approval period, the carrier may, at any time, make use of any of
the pre-approved poles by filing an application for a permit with
the Borough Zoning Officer with a copy of the notice to both the Borough
Clerk and Borough Administrator. The Zoning Officer shall issue a
zoning permit with the necessary construction permit to follow in
due course.
(3)
No pole or poles shall be used unless a zoning permit and construction
permit are issued as provided herein.
(4)
A zoning permit and construction permit may cover multiple installations
in multiple locations, provided the specific locations are designed
in the permit application.
B.
Use of new or replacement poles.
(1)
When a carrier concludes that an existing pole or poles cannot be
utilized or is unsuitable for the installation of facilities under
this article, the carrier may propose the use of a replacement pole
or the installation of an additional pole within the right-of-way.
The carrier shall submit a preliminary request to the Zoning Officer
with copies to both the Borough Clerk and Borough Administrator. Such
preliminary request shall contain the exact location of the existing
or proposed pole; whether it is a proposed replacement of an existing
pole or an additional pole; if an additional pole, a description of
the proposed installation and type of pole to be utilized; and such
additional information as the Borough may require. This subsection
applies to any proposal to install/construct a stealth structure as
those terms are defined herein. A new pole or installation will only
be approved when a carrier establishes by conclusive evidence that
existing facilities are either unusable or unsuitable under the existing
circumstances.
(2)
Furthermore, it is the carrier's responsibility to ensure all existing
utilities located on a pole that is replaced are removed and properly
installed on a new/replacement pole.
(3)
All pole designs are to be included within a proper application and
approved by the Borough of Stone Harbor.
(4)
Upon receipt of a complete application, and after such supplementation as the Borough may require, the application will be reviewed by the Borough, which may include a review by the Site Committee established under this article and within such times as specified in § 475-25.
(5)
If the carrier agrees with the preliminary determination, the site
inventory of poles will be updated and the matter submitted to Borough
Council for approval and, upon approval, the zoning permit and construction
permits may issue.
(6)
If the carrier does not accept the preliminary determination, then
representatives of both the carrier and the Borough will meet in an
effort to resolve disputed issues. If a resolution cannot be reached,
then the applicant may pursue the appeal process.
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Cross reference: § 475-36 (Site Committee; Composition; Functions; Appeals).
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A.
Permit required. No carrier, without first filing an application
and obtaining a zoning permit from the Borough Zoning Officer pursuant
to N.J.S.A. 40:55D-18, shall construct any facility within any public
right-of-way.
B.
Application requirements. The application shall contain, at a minimum,
the following:
(1)
The carrier's name and address and telephone number of the contact
person for such carrier;
(2)
The applicant's name and address, if different than the carrier,
and telephone number of the contact person for such applicant;
(3)
The names, addresses, and telephone numbers of the professional consultants,
if any, advising the applicant with respect to the application;
(4)
A brief description of the proposed work;
(5)
A plan with specifications of the facility showing the work proposed,
including sufficient information regarding the components of the facility,
including their types and quantities;
(6)
Any request for a deviation from one or more provisions of this article;
and
(7)
Such additional information as may be reasonably required by the
Borough Zoning Officer.
C.
Application fees. All applications for zoning permits pursuant to
this article shall be accompanied by a fee and escrow deposit as set
forth in Appendix A of this article.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
D.
Recurring fees. Annual recurring fees shall be payable as set forth
in Appendix A.
A.
Installation of facilities. It shall be lawful for wireless communication
carriers to install facilities in the public rights-of-way on existing
poles only, and such carriers shall comply with all requirements of
this article and the terms and condition of the master license agreement.
All applicants shall obtain any and all approvals necessary from the
owner and/or operator of the utility poles to be used.
B.
Other approvals. All applicants shall obtain any and all approvals
necessary from any other governmental agency in addition to the owner
and/or operator of the utility poles to be used.
C.
Height. No antenna or attachment to an existing utility pole shall
exceed the height of that pole by more than five feet.
D.
New poles. No new poles shall be erected for the purpose of placing facilities regulated herein. The setting of utility poles is regulated by the New Jersey Board of Public Utilities ("BPU"); the Borough authorizes only the utility company to set utility poles in the public rights-of-way in their normal course as they deem appropriate and/or necessary subject to BPU regulation. Any proposed new pole shall follow the procedure specified in § 475-22B. A new pole will be authorized only when a carrier conclusively demonstrates that existing poles or facilities are unsuitable or unusable.
E.
Pole-mounted equipment. Equipment shall be pole mounted at a minimum
of eight feet from the ground and/or shall conform to all Flood Prevention
Ordinance requirements of the Borough, including but not limited to
base flood plus elevations required, whichever is higher in height
and the facility is mounted on a structure 50 feet or less in height,
including the antenna or is mounted on a structure no more than 10%
taller than other adjacent structures or does not extend existing
structures on which they are located to a height of more than 50 feet
or by more than 10%, whichever is greater; each antenna associated
with the deployment, excluding associated antenna equipment, is no
more than three cubic feet in volume; all other wireless equipment
associated with the structure, including wireless equipment associated
with the antenna and any pre-existing associated equipment on the
structure, is no more than 28 cubic feet in volume.
F.
Ground-mounted equipment. No ground-mounted equipment is permitted
on or around any pole.
G.
Color and conduit. All antennas, conduit and equipment shall be a
color that blends with the utility pole on which it is mounted. Any
cables or wiring attached to the utility pole shall be covered with
an appropriate conduit.
H.
Construction permits. Subsequent to the issuance of the zoning permit,
the permittee shall obtain any necessary permits required pursuant
to the current Uniform Construction Code adopted in New Jersey prior
to installation.
I.
Underground work. All underground work shall follow standard road
opening permit requirements.
J.
Co-location. All carriers shall co-locate and cooperate with each
other to minimize the impact and number of facilities on and in the
public rights-of-way.
The Zoning Officer shall approve or reject the permit application
within 10 business days, unless the applicant consents, in writing,
to an extension of time beyond the 10 days. If the application is
rejected, the reason for such rejection shall be stated in writing.
If the Zoning Officer determines that the permit application is incomplete
and insufficient to enable the Zoning Officer to either approve or
reject the application, then, in such case, the Zoning Officer shall
inform the applicant in writing what information is missing and this
shall be deemed a denial of the application. If the application does
not conform to the requirements of this article and no request for
a deviation is made with the application, the Zoning Officer shall
reject such application in writing, stating the reasons therein. If
the Zoning Officer is satisfied that the application conforms to the
requirements of this article, the Zoning Officer shall issue a permit
therefor as follows:
A zoning permit from the Zoning Officer shall confirm compliance
with this article and shall authorize the permittee to apply for construction
permits to undertake the work set forth in the plans filed with the
permit application. The permit shall not grant authority to the permittee
to impinge upon the rights of others who may also have an interest
in the public rights-of-way.
A.
Request for deviations. A carrier proposing to deviate from one or
more of the provisions of this article shall do so in writing to the
Zoning Officer as part of the permit application. The request shall
identify each provision of this article from which a deviation is
requested and the reasons why a deviation should be granted.
B.
Authority to grant deviations. Relative to additional pole procedures, the Zoning Officer shall have no authority to grant a deviation from any conditions of § 475-24, Conditions and requirements. The Zoning Officer shall decide for all other requests whether a deviation is authorized by this article and the carrier requesting the deviation has demonstrated that:
(1)
One or more conditions not under the control of the carrier (such
as terrain features or an irregular public rights-of-way line or condition)
create a special hardship that would make enforcement of the provision
unreasonable, given the public purposes to be achieved by the provision;
and
(2)
All other designs, methods, materials, locations or facilities that
would conform to the provision from which a deviation is requested
are impracticable in relation to the requested approach.
C.
Additional conditions for granting of a deviation. As a condition
for authorizing a deviation, the Zoning Officer may require the carrier
requesting the deviation to meet reasonable standards and conditions
that may or may not be expressly contained within this article but
which carry out its purposes.
D.
Material deviations. In the event the actual size, type, material,
or location of any facilities installed in the public rights-of-way
deviate in a materially significant way from that which was shown
on the plans submitted with the zoning permit application, the permittee
shall file new plans with the Zoning Officer within 30 days of request
or be subject to a stop-work order, an order of removal, or a requirement
to apply to the governing body for relief.
E.
Referral to Site Review Committee. If the Zoning Officer determines
that the deviation requested (or existing) is a major deviation and/or
that practical hardship has not been properly demonstrated, or is
a deviation from this article, the request shall be referred to the
Borough Administrator, who shall refer the matter to the Site Committee
for review. If the Site Committee denies the request for a deviation,
then the permittee shall, within 30 days of said denial, either remove
the facility from the public rights-of-way (if installed) or modify
the facility so that it conforms to this article and submit revised
plans to the Zoning Officer for approval.
F.
Review fees.
(1)
Any reasonable professional fees incurred by the Site Committee in
its review of a request for a deviation or as a result of the installation
of a facility in violation of this section, and for which no approval
is granted, shall be paid to the Borough within 30 days and prior
to the issuance of the zoning permit as permitted by N.J.S.A. 54:30A-124.
(2)
An escrow of $2,500 shall be submitted with the request for deviation
to the office of the Borough Administrator to cover such fees and
be replenished as deemed appropriate by the Zoning Officer.
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Cross reference: Appendix A.[1]
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[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
G.
The Site Review Committee may, with the blanket approval of the governing
body, grant a deviation or waive any requirement of this article whenever
there is good cause and it is determined that to do so furthers the
intent and purpose of this article, facilitates the orderly and efficient
deployment of small cell facilities and equipment within the Borough
and it appears that the best interest of the Borough and the public
is served in doing so.
A.
Required coverage and limits. Each carrier constructing a facility
in the public rights-of-way shall secure and maintain commercial general
liability insurance with limits not less than $2,000,000 for injury
or death on one or more persons in any one occurrence and $2,000,000
for damage or destruction in any one occurrence insuring the carrier
as a named insured and listing the Borough as an additional insured
on the policies.
B.
Copies required. The carrier shall provide copy of certificates of
insurance reflecting the requirements of this section to the Borough
within 10 days following zoning approval and prior to obtaining a
construction permit pursuant to this article.
C.
Self-insurance. A carrier may self-insure all or a portion of the insurance coverage and limit requirements required by Subsection A of this section. A carrier that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of an additional insured under Subsection A or the requirements of Subsection B of this section. A carrier that elects to self-insure shall provide to the Borough evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit required under Subsection A of this section. Proof of such financial ability to self-insure shall be provided to the Borough within 10 days following the effective date of the master license agreement and prior to obtaining a permit pursuant to this article.
D.
Effect of insurance and self-insurance on carrier's liability. The
legal liability of the carrier to the Borough and any person for any
of the matters that are the subject of the insurance policies or self-insurance
required by this section shall not be limited by such insurance policies
or self-insurance or by the recovery of any amounts thereunder; however,
neither the Borough nor the carrier shall be liable to the other for
consequential, incidental, exemplary or punitive damages on account
of any activity pursuant to this article.
A.
Prior to constructing a facility in the public rights-of-way, and
as a precondition to the issuance of a permit pursuant to this article,
the carrier shall execute the master license agreement, agreeing,
among other things, to indemnify and hold harmless the Borough against
any claim of liability or loss from personal injury or property damage
resulting from or arising out of the negligence or willful misconduct
of the carrier, its employees, contractors or agents, except to the
extent such claims or damage may be due to or caused by the negligence
or willful misconduct of the Borough or its employees, contractors
or agents.
B.
The Borough will provide the carrier with prompt, written notice
of any claim covered by this indemnification; provided that any failure
of the Borough to provide any such notice, or to provide it promptly,
shall not relieve the carrier from its indemnification obligation
in respect of such claim, except to the extent the carrier can establish
actual prejudice and direct damages as a result thereof. The Borough
shall cooperate with the carrier in connection with the carrier's
defense of such claim. The Carrier shall defend the Borough, at the
Borough's request, against any claim with counsel of the Borough's
choosing that is reasonably satisfactory to the carrier.
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Cross reference: § 475-22 (Master license agreement; procedure to obtain permits).
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A.
Right to revoke permit.
(1)
The Zoning Officer may revoke or suspend a permit issued pursuant
to this article for one or more of the following reasons:
(a)
Materially false or incomplete statements in the permit application;
(b)
Noncompliance with one or more provisions this article for which
a deviation has not been allowed;
(c)
The permittee's facilities within the public rights-of-way present
a direct or imminent threat to the public health, safety, or welfare;
(d)
The permittee's failure to construct the facilities substantially
in accordance with the permit and approved plans; or
(e)
Violation of the terms and conditions of the master license
agreement.
(2)
Before taking any such action, the Zoning Officer shall first consult
with the Borough Administrator and Borough Solicitor.
B.
Notice of revocation or suspension. The Zoning Officer shall send
written notice of its intent to revoke or suspend a permit issued
pursuant to this article, stating the reason or reasons for the revocation
or suspension and the alternatives available to the permittee under
this section.
C.
Permittee alternatives upon receipt of notice of revocation or suspension.
Upon receipt of a written notice of revocation or suspension from
the Zoning Officer, the permittee shall have the following options:
(1)
Immediately provide the Borough with evidence that no cause exists
for the revocation or suspension;
(2)
Immediately correct, to the satisfaction of the Zoning Officer, the
deficiencies stated in the written notice, providing written proof
of such correction to the Zoning Officer within 10 business days after
the receipt of the written notice of revocation; or
(3)
Within 10 business days remove the facilities located within the
public rights-of-way and restore the public rights-of-way to the satisfaction
of the Zoning Officer, providing written proof of such removal to
the Zoning Officer within 10 business days after receipt of the written
notice of revocation. The Zoning Officer may, in his or her discretion,
extend the time periods provided in this subsection. To be effective,
extensions must be in writing.
Notification of change. A carrier shall notify the Borough no
less than 30 days following the transfer of ownership of any facility
in the public rights-of-way or change in identity of the carrier.
The rights and obligations given to the carrier pursuant to the master
license and zoning permit shall be binding on and benefit the new
owner of the carrier or the facility, its successors and assigns,
who shall have all the obligations and privileges enjoyed by the former
owner under the master license agreement, zoning permit, and all applicable
laws, ordinances, rules and regulations, including this article, with
respect to the work and facilities in the public rights-of-way.
A.
Warning signs, protective devices, and flaggers. The carrier is responsible
for providing and installing warning signs, protective devices and
flaggers, when necessary for protection of the public and the carrier's
workers when performing work on the public rights-of-way. The carrier
and its contractor(s) and subcontractors shall comply with the provisions
of the Manual of Uniform Traffic Control Devices to the extent applicable
and necessary.
B.
Interference with traffic. All work shall be phased so that there
is minimum interference with pedestrian and vehicular traffic. All
road closures should be coordinated with the Police Department, Fire
Department and County Dispatch.
C.
Compliance. The carrier shall take immediate action to correct any
deficiencies in traffic protection requirements that are brought to
the carrier's attention by the Zoning Officer, Borough Engineer, Fire
Department, Police Department, Department of Public Works and Utilities
or Code Enforcement.
A.
Notice. Within 30 days' following written notice from the Borough,
any carrier with facilities in the public rights-of-way shall, at
its own expense, temporarily or permanently remove, relocate, change
or alter the position of any facilities whenever the Borough determines
that a) such removal, relocation, change or alteration is reasonably
necessary for the construction, repair, maintenance, or installation
of any Borough improvement in or upon the public rights-of-way; or
b) because the equipment is interfering with or adversely affecting
proper operation of the light or other poles; or c) the widening of
the public rights-of-way. In such instance, the Borough shall cooperate
with carrier to find a replacement location for the facility that
will provide similar radio frequency coverage to the facility removed
or relocated.
B.
Removal of unauthorized facilities. Within 30 days' following written
notice from the Zoning Officer to any carrier that owns, controls,
or maintains any unauthorized facility or related appurtenances within
any public rights-of-way shall, at its own expense, remove all or
any part of such facilities or appurtenances. A facility is unauthorized
and subject to removal, but not limited to, in the following circumstances:
(1)
Upon expiration or termination of the permittee's license, unless
otherwise permitted by applicable law;
(2)
If the facility was constructed without the prior grant of a zoning
permit;
(3)
If the facility was constructed without prior issuance of a required
construction permit;
(4)
If the facility was constructed at a location not permitted by the
permittee's permit; or
(5)
Upon abandonment of the facility. Abandonment will be presumed where
a facility has not been used for the purpose for which it was installed
for a period of 90 consecutive days, or more, and where there have
been no efforts to repair or renew the use during the ninety-day period.
The carrier owning, controlling or maintaining the facility shall
have the burden of establishing to the Zoning Officer that the facility
is still being used within 30 days of the notice. All notices described
herein shall be in writing and sent by recognized national overnight
courier (e.g., U.S. Postal Service, Federal Express or UPS) for which
proof of delivery is supplied. Failure to respond to the Zoning Officer's
request for information regarding the abandonment of the facility
shall constitute a presumption of abandonment. Upon the Zoning Officer's
determination and final written notification to the carrier of such
abandonment, the carrier shall have 60 days within which to:
(6)
If the facility or any aspect of same was constructed in violation
of any provision of this article.
C.
If the entity believes that the determination of abandonment by the Zoning Officer is incorrect it may file a written appeal with the Site Committee as provided in § 475-36 hereof within 30 days of the Zoning Officer's determination. If the entity fails to prevail on appeal, or fails to reactivate, or transfer to another active user or remove the service facility, the Borough shall have the right to have the facilities removed at the carrier's sole expense. The Borough shall be entitled to reimbursement for all costs and expenses associated with the removal of any facility thereafter.
Upon completion of all construction or maintenance of facilities,
the carrier shall remove all debris and restore the right-of-way to
a clean and safe condition in a timely manner and to the satisfaction
of the Zoning Officer and the Director of the Department of Public
Works.
A.
General. Facilities within public rights-of-way shall be maintained
by or for the carrier at the carrier's sole expense. The carrier shall
not damage the public right-of-way and shall keep the public right-of-way
free of all debris. If any portion of the public right-of-way suffers
damage by reason of access by the carrier, then in that event, the
carrier, at its sole cost and expense, shall immediately repair all
such damage or replace the damaged portion of the public right-of-way
and restore the damaged portion of the property to its condition prior
to the occurrence of such damage.
B.
Emergency maintenance procedures. The noncompliance with normal procedures
for securing a required permit shall be excused when a carrier reasonably
determines that an emergency exists.
(1)
If an emergency creates a hazard on the traveled portion of the public
rights-of-way, the carrier shall take immediate steps to provide all
necessary protection for traffic on the roadway, including the use
of signs, lights, barricades or flaggers.
(2)
In an emergency, the carrier shall, as soon as practical, notify
the Borough Zoning Officer or his or her duly authorized agent and
the Borough of Stone Harbor Police Department of the emergency, informing
him or her as to what steps have been taken for protection of the
traveling public and what will be required to make the necessary repairs.
On nights and weekends, the carrier shall notify the Borough of Stone
Harbor Police Department of an emergency if the Borough Zoning Officer
is unavailable. If the nature of the emergency is such as to interfere
with the free movement of traffic, the Borough of Stone Harbor Police
Department shall be notified immediately. To the extent that the Borough
of Stone Harbor has actual knowledge of the displacement or damage
to any facility, it shall inform the carrier upon learning of the
same.
A.
There is hereby created under this article and section a group to
be known as the Site Committee consisting of the Borough Administrator,
the Utilities Committee and the Zoning Officer.
B.
The function of the Site Committee shall be as follows:
(1)
Review and approve an inventory of all existing wood poles in the
Borough submitted by a carrier for the installation of a wireless
facility as defined herein and submit that recommendation to Borough
Council.
(2)
Review and approve the type and location of any new or replacement
pole prior to the issuance of a Zoning Permit and construction Permit
under this article and submit that recommendation to Borough Council.
(3)
Initially hear and decide any appeal of any determination by the
Borough Administrator or the Zoning Officer except that any appealable
issue arising under the New Jersey Uniform Construction Code (UCC)
shall be heard by the Cape May County Board of Construction Appeals
and not by the Site Committee.
(4)
The Committee may, in its discretion, consult with any Borough consultant
regarding the issues under consideration.
C.
Procedure:
(1)
Appeals to the Site Committee shall proceed pursuant to the terms
of this agreement. Generally, an appeal shall be filed within 30 days
of the decision being appealed and shall be in writing, specifying
the reason and grounds for the appeal. A hearing on the appeal shall
be scheduled not sooner than 20 nor later than 30 business days from
the date of filing. A decision shall be rendered, in writing, within
15 business days following the hearing.
(2)
A carrier, or any other aggrieved party in interest, may thereafter
appeal the decision of the Site Committee to the Borough Council by
filing a notice of appeal within 30 days following the written decision
of the Site Committee. Such notice must be in writing, specifying
the reasons and grounds for such appeal. Upon the filing of such an
appeal, the Borough Council may choose one of the following:
(a)
Refer the matter to a Hearing Officer who shall conduct a hearing
substantially following the procedure for administrative hearings
in New Jersey. The Hearing Officer shall then submit his/her findings
and conclusions with 15 business days after the close of the hearing.
The Borough Council may then accept, reject, or modify the decision
of the Hearing Officer based on the record developed before the Hearing
Officer; or
(b)
The Borough Council may select an ad hoc committee of its membership
to hear and decide the appeal; or
(c)
The Borough Council may decide to have the full Council decide
the matter.
(3)
Following the exhaustion of such administrative remedies, any aggrieved
person or entity may pursue a further appeal to a court of competent
jurisdiction subject to the rules of such court.
Nothing in this article shall be construed as limiting any additional
or further remedies that the Borough may have for enforcement of this
article or the right of a carrier to appeal any decision to a court
of competent jurisdiction.
Any person or entity who violates any of the provisions of this Chapter 475, Article V, shall, upon conviction, be subject to the penalties set forth in § 1-17 of this Code, including the provision for enhanced penalties provided therein. The penalties under this section shall be in addition to, and not in place of, any other penalty or sanction prescribed herein.
