[Added 7-26-2021 by Ord.
No. 2021-10]
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 USC § 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 C.F.R. § 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:
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 Borough of Fair Haven within an easement to the public
or other easement owned by the Borough of Fair Haven.
SMALL WIRELESS FACILITY
As defined in the Code of Federal Regulations at 47 C.F.R
§ 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 latches,
external hinges, nor external cabling. The pole should be made of
an inherently rust-resistant material (ie. aluminum alloys or stainless
steel).
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 7-26-2021 by Ord.
No. 2021-10]
a. No person shall place a Small Wireless Facility in any right-of-way
without first filing a Small Wireless Facility siting permit application,
in the form specified herein and in accordance with the procedures
specified herein, with the Fair Haven Borough Clerk and obtaining
a siting permit therefore, except as otherwise may be provided in
this chapter. Upon approval of a siting permit application, the siting
permit authorizing placement of a Small Wireless Facility in a public
right-of-way shall not be issued by the Fair Haven Borough Clerk to
any applicant unless:
1. All siting permit application fees and escrow fees, as established
herein, have been paid; and
2. All other governmental permits or other governmental approvals that are required for the deployment(s) proposed by the applicant's siting permit application under the New Jersey Uniform Construction Code Act, N.J.S.A. 52:27D-119, et. seq., and the administrative regulations adopted thereunder, Chapter
15, Streets and Sidewalks, of the Code of the Borough of Fair Haven, and by any other applicable federal, state or municipal law have been issued by the appropriate issuing authority therefore to the applicant and the applicant has supplied copies of such other permits or approvals to the Fair Haven Borough Clerk for inclusion with the applicant's application documents; and
3. The applicant has entered into a "Right-of-Way Use Agreement," the
approved form of which is set forth in Appendix B, with the Municipality.
The approved form of "Right-of-Way Use Agreement" may from time-to-time
be revised, supplemented or otherwise amended or replaced. All such
revisions, supplements, amendments or replacements shall be approved
by resolution of the Borough of Fair Haven Council. The Fair Haven
Borough Clerk shall maintain on file the currently approved Right-of-Way
Use Agreement version and shall provide a copy to all siting permit
applicants. Minor deviations to the terms and conditions that are
set forth in the approved form of Right-of-Way Use Agreement may be
approved by the Fair Haven Borough Council at the time that it grants
consent to use a right-of-way to a siting permit applicant.
Editor's Note: Appendix B may be found in the Borough offices.
b. No siting permit authorizing placement of a Small Wireless Facility
in a public right- of-way shall be issued to any applicant unless
the Fair Haven Borough Council, in the manner prescribed by applicable
laws of the State of New Jersey, has granted to the siting permit
applicant its consent to use public rights-of-way within the Borough
of Fair Haven. No siting of a Small Wireless Facility shall be permitted
within 200 feet of another Small Wireless Facility unless it can be
established by clear and convincing evidence that co-location on an
existing or previously approved Small Wireless Facility is not feasible.
Any claims of carriers of technical incompatibility or inability to
collocate need to be proven by the carrier, not disproven by the municipality.
Responsibility for judging proof of said claims lies solely with the
municipality and/or or its chosen representative(s).
[Added 7-26-2021 by Ord.
No. 2021-10]
a. No application for a Small Wireless Facility siting permit shall
be approved if the application proposes the deployment of a Small
Wireless Facility upon an existing structure in a right-of-way unless
the structure is one of the types of Smart Poles that are set forth
in Appendix A and such Smart Pole specifically is designed to accommodate
the reasonable and customary equipment necessary for a Small Wireless
Facility installation which will accommodate at least three carriers
per Small Wireless Facility deployment.
Editor's Note: Appendix A may be found in the Borough offices.
b. No Small Wireless Facility shall be installed upon any new structure
within any right-of-way unless the new structure is one of the pre-approved
types of Smart Poles that are identified in Appendix A. A replacement
pole is a new structure. The restrictions on new structures set forth
herein shall not apply to new structures to be constructed in the
following zoning district: [see Borough Clerk]. Appendix A, from time-to-time,
may be revised, supplemented or otherwise amended or replaced. All
such revisions, supplements, amendments or replacements shall be approved
by resolution of the Fair Haven Borough Council. The Fair Haven Borough
Clerk shall provide a copy of Appendix A to all siting permit applicants.
c. No application for a Small Wireless Facility siting permit shall
be approved if the application proposes the deployment of a Small
Wireless Facility in an area other than those specific locations set
forth within the City's Wireless Siting Plan, which can be found
on file with the Office of the City Clerk. All Small Wireless Facilities
must be placed within a 25 feet radius of those specific locations
set forth on the City's Wireless Siting Plan. No more than one
Smart Pole shall be permitted per intersection or block if the Siting
Plan calls for the deployment of a Small Wireless Facility at any
location other than an intersection, unless otherwise specified within
the Wireless Siting Plan. No Smart Poles shall be located within 200
feet of another.
[Added 7-26-2021 by Ord.
No. 2021-10]
a. Application Filing. An application for a siting permit to place one
or more Small Wireless Facility within a right-of-way shall be made
on forms which shall be available from the Office of the Fair Haven
Borough Clerk. The application, along with the required application
fee and the required escrow fee, shall be filed with the Fair Haven
Borough Clerk. Immediately upon receipt of an application, the Fair
Haven Borough Clerk shall provide copies of the application and all
supporting documents that were submitted by the applicant with the
application, to the Fair Haven Borough Engineer, the Construction
Official and the Fair Haven Borough Solicitor.
b. Application Form. The Small Wireless Facility siting permit application
shall be made by 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 e-mail 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 municipality, or a designee of the municipality,
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.
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
siting permit for multiple Small Wireless Facilities.
[Added 7-26-2021 by Ord.
No. 2021-10]
a. The municipality shall review the application for a Small Wireless
Facility siting permit in light of its conformity with the provisions
of this chapter, and shall approve a siting permit on nondiscriminatory
terms and conditions subject to the following requirements:
1. Within 10 days of receiving an Application, the Fair Haven Borough
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. No Small Wireless Facility siting 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.
b. The municipality shall make its final decision to approve or deny
the application within the following timeframes:
1. Sixty days from the submission of a complete application to install
a Small Wireless Facility upon one or more existing structures.
2. Ninety days from the submission of a complete application to install
a Small Wireless Facility upon one or more new structures.
3. Ninety days from the submission of a complete batched application
to install Small Wireless Facilities upon both existing and new structures.
The timeframes described above by which an application shall
be either approved or denied may be extended by mutual consent of
the Applicant and Borough of Fair Haven. Such consent shall be set
forth on a form for such purposes which shall be available from the
Office of the Borough Clerk. Such consent on behalf of the Borough
of Fair Haven shall be exercised by the Mayor in his/her reasonable
discretion.
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c. The Fair Haven Borough Clerk shall notify the applicant in writing
of the final decision, and if the application is denied specify the
basis for denial; and cite such specific provisions, as may be recommended
by the Borough Attorney, from federal, state, or local laws, administrative
regulations or codes as to why the application was denied.
d. Notwithstanding an initial denial, the applicant may cure any deficiencies
identified by the Borough of Fair Haven within 30 days of the denial
without paying an additional application fee, provided the Fair Haven
Borough Clerk shall approve or deny the revised application within
30 days of receipt of the amended application which shall be limited
to the deficiencies specified in the original notice of denial.
e. If the Borough of Fair Haven fails to act upon an application within
the timeframes prescribed by this section, the applicant may provide
written notice to the Borough of Fair Haven that the application review
and decision period has lapsed. Upon receipt of such notice, the Fair
Haven Borough Council, 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 siting permit
shall be approved and issued. Nothing in this paragraph 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 Borough
of Fair Haven fails to act upon an application within the timeframes
prescribed by this section.
f. A siting permit from the Borough of Fair Haven authorizes an applicant
to undertake only certain activities in accordance with this chapter.
No approval or consent granted, or siting permit issued, pursuant
to this ordinance shall confer any exclusive right, privilege, license
or franchise to occupy or use any public right-of-way within the Borough
of Fair Haven for the delivery of telecommunications services or for
any other purpose.
[Added 7-26-2021 by Ord.
No. 2021-10]
No siting permit issued under this chapter shall be valid for
a period longer than 24 months unless construction has actually begun
and continuously and diligently is pursued to completion. Upon written
request from the applicant, the Mayor, upon consultation with the
Construction Official, may extend the siting 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.
[Added 7-26-2021 by Ord.
No. 2021-10]
A Small Wireless Facility siting permit shall not be required
for:
a. Routine maintenance of a Small Wireless Facility.
b. 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.
c. Provided, however, that on a location where the Borough of Fair Haven
and/or another provider has placed equipment or facilities, any routine
maintenance or replacement that is done shall not occur until written
authorization from the Borough of Fair Haven and/or the other provider,
as the case may be, to proceed is provided to the Borough of Fair
Haven, which authorization to proceed shall not unreasonably be withheld
by the Borough of Fair Haven and/or the other provider.
d. Provided further that if the replacement of a Small Wireless Facility
with another Small Wireless Facility includes replacement of the structure
to which the Small Wireless Facility is attached then an application
for a siting permit shall be required.
[Added 7-26-2021 by Ord.
No. 2021-10]
a. All applications for approval and issuance of a Small Wireless Facility
siting permit pursuant to this chapter 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.
2. For applications that include the installation of a new structure
within a right-of-way the application fee shall be $1,000 for up to
five Small Wireless Facilities with an additional $100 for each Small
Wireless Facility beyond five.
[Added 7-26-2021 by Ord.
No. 2021-10]
a. In addition to the application fee, all applications for approval
and issuance of a Small Wireless Facility siting permit shall be accompanied
by an escrow fee as follows:
1. For applications whose proposed Small Wireless Facility deployment(s) will not require a street opening permit pursuant to Chapter
15, Streets and Sidewalks, of the Code of the Borough of Fair Haven: $5,000.
2. For applications whose proposed Small Wireless Facility deployment(s)
will require a street opening permit of the Code of the Borough of
Fair Haven: $7,500.
b. The escrow account deposits 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 Borough'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 Borough of Fair Haven
for all fees, costs and expenses of third-party professionals and
consultants incurred and paid by the Borough of Fair Haven for the
review process of a Small Wireless Facility siting 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 Borough of Fair Haven 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 Borough of Fair Haven, such as the Borough
Attorney, Borough Engineer and Borough Planner or other experts as
required.
c. The escrow account deposits shall be placed in a separate account
by the Borough of Fair Haven's Chief Financial Officer at the
request of the Fair Haven Borough 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 siting permit
application or upon issuance of a Small Wireless Facility siting permit,
any moneys 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 Fair Haven Borough
Council;
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 siting 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 Monmouth County; and
(b) Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar
basis with no mark-up being permitted;
7. The Borough of Fair Haven 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 Borough of Fair Haven.
[Added 7-26-2021 by Ord.
No. 2021-10]
An applicant whose siting permit includes the installation of
any new Smart Pole structure of any of the types that are included
in Appendix "A" shall provide the Borough of Fair Haven with access
to any of the technological features that are a component 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 Borough decide to
utilize any such technological features then the Borough of Fair Haven,
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 Borough with such access. Such costs shall be limited
to the costs of providing electricity to the components used by the
Borough of Fair Haven and the costs of any repairs required to be
made to the components used by the Borough, 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 7-26-2021 by Ord.
No. 2021-10]
All ordinances or parts of ordinances inconsistent with this
chapter, to the extent of such inconsistencies only, be and the same
hereby are repealed.
[Added 7-26-2021 by Ord.
No. 2021-10]
This chapter shall take effective immediately upon final passage
and publication as provided by law.