[Ord. No. 541, 10/20/2021]
In the exercise of its police powers and pursuant to the authority
granted to the Borough under Act 50, the Borough has jurisdiction
to regulate uses of the right-of-way. In addition the Borough owns
certain poles for signage and electrical facilities which serve important
purposes and which are located within the rights-of-way. The purpose
of this chapter is to provide the Borough with a process for managing,
and uniform standards for acting upon, requests for the placement
of small wireless facilities within the right-of-way consistent with
the Borough's obligation to promote the public health, safety, and
welfare; to manage the right-of-way and Borough facilities located
within the Right of Way; and to ensure that the public's use is not
obstructed or disturbed by the use of the right-of-way for small wireless
facilities. The Borough recognizes the importance of wireless telecommunications
facilities to provide high-quality communications and internet access
services to residents and businesses within the Borough. The Borough
also recognizes its obligation to comply with applicable federal and
state laws regarding the placement of wireless telecommunications
facilities in the right-of-way including, without limitation, the
Telecommunications Act of 1996, 47 U.S.C. § 151 et seq.,
and Act 50, 53 P.S. §§ 11704.1 to 11704.11. This chapter
shall be interpreted consistent with those provisions.
[Ord. No. 541, 10/20/2021]
For the purposes of this chapter, the terms below shall have
the meanings given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in
the plural include the singular, and words in the singular include
the plural.
ACCESSORY EQUIPMENT
Any equipment serving or being used in conjunction with a
small wireless facility or wireless support structure, including but
not limited to utility or transmission equipment, power supplies,
generators, batteries, cables, equipment buildings, cabinets, and
storage sheds, shelters, or similar structures.
ANTENNA
Telecommunications equipment that transmits and receives
electromagnetic radio signals used in the provision of all types of
wireless telecommunications services.
APPLICABLE CODES
All applicable federal and state laws, regulations and standards
that comply with Act 50. The term shall also include all ordinances,
resolutions, or policies of the Borough regulating:
1.
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or local
amendments to those codes enacted solely to address imminent threats
of destruction of property or injury to persons.
2.
Local zoning, land use, streets and sidewalks, right-of-way
and permitting ordinances or other local rules or regulations that
comply with Act 50.
APPLICANT
A communications service provider that submits an application.
APPLICATION
A formal request, including all required and requested documentation
and information, submitted by an applicant to the Borough for a wireless
permit.
BOROUGH
The Borough of Hatfield, Montgomery County, Pennsylvania.
BOROUGH'S DESIGNEE
The person(s) or entity(s) selected by the Borough as responsible
for initial processing of the application if any.
CO-LOCATE or CO-LOCATION
To install, mount, maintain, modify, or replace small wireless
facilities on an existing utility pole or other wireless support structure
with the permission of the owner thereof.
COMMUNICATIONS SERVICE PROVIDER
Any of the following:
1.
A cable operator as defined in Section 602(4) of the Cable Communications
Policy Act of 1984 [Public Law 98-549, 47 U.S.C. § 522(5)].
2.
A provider of information service as defined in Section 3(20)
of the Communications Act of 1934 [48 Stat. 1064, 47 U.S.C. § 153(24)].
3.
A telecommunications carrier as defined in Section 3(44) of
the Communications Act of 1934 [48 Stat. 1064, 47 U.S.C. § 153(51)].
FCC
The Federal Communications Commission.
HISTORIC DISTRICT OR BUILDING
A building that is or a group of buildings, properties or
sites that are:
1.
Listed in the National Register of Historic Places or formally
determined eligible for listing by the Keeper of the National Register.
2.
Determined to be eligible for listing by the Keeper of the National Register of Historic Places who has been delegated the authority by a Federal agency to list properties and determine their eligibility for the National Register of Historic Places in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic Agreement for Review Regarding the Section 106 National Historic Preservation Act Review Process as specified under 47 CFR Pt.
1, App. C (relating to Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process).
3.
Marked as a historical site by the Pennsylvania Historical and
Museum Commission pursuant to 37 Pa.C.S.A. (relating to historical
and museums).
4.
Within a historic district created pursuant to the act of June
13, 1961 (P.L. 282, No. 167), entitled "An act authorizing counties,
cities, boroughs, incorporated towns and townships to create historic
districts within their geographic boundaries; providing for the appointment
of Boards of Historical Architectural Review; empowering governing
bodies of political subdivisions to protect the distinctive historical
character of these districts and to regulate the erection, reconstruction,
alteration, restoration, demolition or razing of buildings within
the historic districts."
MICRO WIRELESS FACILITY
A small wireless facility that:
1.
Does not exceed two cubic feet in volume; and
2.
Has an exterior antenna no longer than 11 inches.
MODIFICATION or MODIFY
The improvement, upgrade or replacement of a small wireless
facility or an existing utility pole that does not substantially change,
as defined in 47 CFR 1.6100(b)(7) (relating to wireless facility modifications),
the physical dimension of the small wireless facility or utility pole.
MUNICIPAL POLE
A utility pole owned, managed, or operated by or on behalf
of the Borough.
PERSON
A natural person, firm, partnership, company, association,
trust, corporation, or other legal entity. The singular shall include
the plural, the plural shall include the singular; and the masculine
shall include the feminine and the neuter, whatever appropriate.
RIGHT-OF-WAY
The area on, below or above a public roadway, highway, street,
sidewalk, alley, utility easement or similar property. The term does
not include a federal interstate highway.
SMALL WIRELESS FACILITY
The equipment and network components, including antennas,
transmitters, and receivers, used by a wireless provider that meet
the following qualifications:
1.
Each antenna associated with the deployment is no more than
three cubic feet in volume.
2.
The volume of all other equipment associated with the wireless
facility, whether ground-mounted or pole-mounted, is cumulatively
no more than 28 cubic feet. Any equipment used solely for the concealment
of the small wireless facility shall not be included in the calculation
of equipment volume under this subsection.
TECHNICALLY FEASIBLE
That, by virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a material reduction in the functionality
of the small wireless facility.
UTILITY POLE
A pole or similar structure that is or may be used, in whole
or in part, by or for telecommunications, electric distribution, lighting,
traffic control, signage or a similar function or for co-location.
The term includes the vertical support structure for traffic lights
but does not include wireless support structures or horizontal structures
to which signal lights or other traffic control devices are attached.
WIRELESS FACILITY
Is defined as follows:
1.
Equipment at a fixed location that enables wireless service
between user equipment and a communications network, including any
of the following:
A.
Equipment associated with wireless services.
B.
Radio transceivers, antennas, coaxial or fiber optic cables,
regular and backup power supplies, or comparable equipment, regardless
of technological configuration.
2.
The term includes a small wireless facility.
3.
The term does not include any of the following:
A.
The structure or improvements on, under or within which the
equipment is co-located.
B.
The coaxial or fiber optic cables that are not immediately adjacent
to or directly associated with a particular antenna.
C.
Satellite dishes or similar facilities.
WIRELESS INFRASTRUCTURE PROVIDER
A person authorized by the Pennsylvania Public Utility Commission
to provide telecommunications service in this commonwealth that builds
or installs wireless communication transmission equipment, wireless
facilities or wireless support structures but is not a wireless services
provider.
WIRELESS PERMIT OR PERMIT
A permit issued by the Borough pursuant to this chapter and
authorizing the placement or modification of a small wireless facility
of a design specified in the permit at a particular location within
the right-of-way, and the placement or modification of any existing
wireless support structure to which the small wireless facility is
proposed to be attached.
WIRELESS PROVIDER
A wireless infrastructure provider or a wireless services
provider.
WIRELESS SERVICES
Services, whether at a fixed location or mobile, using a
licensed or unlicensed spectrum, provided to the public using wireless
facilities.
WIRELESS SUPPORT STRUCTURE
A freestanding structure, including a utility pole, municipal
pole, or other existing or proposed freestanding structure that could
support the placement or installation of a wireless facility if approved
by the Borough.
[Ord. No. 541, 10/20/2021]
1. Applicability. Unless otherwise exempted, every applicant who wishes
to place a small wireless facility in the right-of-way or modify an
existing small wireless facility in the right-of-way must obtain a
wireless permit under this chapter.
2. Exempt facilities.
A. The Borough shall not require an application for the following unless
the work involves excavation, closure of a sidewalk, or closure of
a vehicular lane in which case a permit shall still be required:
(1)
Routine maintenance or repair work.
(2)
The replacement of small wireless facilities with small wireless
facilities that are substantially similar or the same size or smaller
and still qualify as a small wireless facility.
B. The exemptions from applications provided for herein shall not relieve
the party performing such work from compliance with the permitting
or application requirements that may otherwise apply pursuant to the
applicable Codes of the Borough including, but not limited to, permits
for excavation-related work.
[Ord. No. 541, 10/20/2021]
1. Application process.
A. Small wireless facilities shall be treated as a permitted use in
all areas of the Borough, except underground districts as established
and designated by the Borough from time to time, and shall be reviewed
by the Borough for conformity with all applicable codes.
B. Applications for small wireless facilities shall be submitted to
the Borough. All applicants shall submit both a paper copy and an
electronic copy (in a searchable format) of any application, as well
as any amendments or supplements to the application or responses to
requests for information regarding an application. An application
is not complete until both the paper and electronic copies are received
and the applicable fee has been paid.
C. A single applicant seeking to co-locate is permitted to submit a
consolidated application for co-location of up to 20 small wireless
facilities. An applicant, however, may not submit more than one consolidated
or 20 single applications for co-located small wireless facilities
in a thirty-day period. If the Borough receives more than one consolidated
application or 20 single applications within a forty-five-day period,
then the applicable time frame for processing applications specified
in this chapter shall be extended by 15 days.
D. Applications are public records that may be subject to disclosure
under the Pennsylvania Right-to-Know Law. The applicant must designate any portions of the application
materials that it reasonably believes contain proprietary or confidential
information by clearly and conspicuously marking each portion of such
materials accordingly. If the Borough determines that the information
is subject to disclosure, such determination shall be conclusive.
If the Borough determines that a right-to-know request asks for proprietary
or confidential information regarding a small wireless facility, then
the Borough shall notify the relevant applicant within five days of
receiving said request pursuant to the Right-to-Know Law. The applicant
and Borough shall use all reasonable efforts to coordinate a response
pursuant to the Right-to-Know Law. If the applicant determines that
the requested information is considered confidential or proprietary
information as defined by the Right-to-Know Law, or that any other
exemption applies, then the applicant shall notify the Borough within
five days of it receiving notification from the Borough. If the applicant
requests that the Borough deny a request pursuant to the Right-to-Know
Law, then the applicant shall be required to enter into an agreement
with the Borough indemnifying the Borough for any and all legal expenses
incurred by the Borough as a result of any challenge to the denial.
E. Applicant must pay an application fee for each application or consolidated
application pursuant to a fee schedule adopted by the Borough as amended
from time-to-time by resolution or otherwise. Unless amended by resolution,
applicant shall pay:
(1)
$500 for an application seeking approval for no more than five
co-located small wireless facilities and $100 for each co-located
small wireless facility beyond five.
(2)
$1,000 for an application seeking approval of a small wireless
facility that requires the installation of a new or replacement utility
pole.
Application fees are nonrefundable and will not be returned
to the applicant even where applicant chooses not to proceed with
construction or installation of the small wireless facility.
F. In addition to the application process set forth herein, applicant
shall be responsible, as may be required by law, to obtain any other
governmental or regulatory permits and approvals required for the
installation or modification of a small wireless facility. The applicant
shall demonstrate that the owner of the wireless support structure
has agreed to its use. The Borough shall not be liable as a result
of accepting an application or issuing a permit in the event that
an applicant is prevented from placing and/or maintaining its small
wireless facility pursuant to this chapter.
G. Applications for small wireless facilities shall include the following:
(1)
Full and complete payment of all applicable permit application
fees.
(2)
A completed application form, to the extent the Borough may
adopt the same from time to time, signed by an authorized representative
of the applicant and made subject to all standard permit conditions
specified in this chapter.
(3)
In the absence of an application form, applicant shall submit
an application packet consisting of a cover letter and all required
supporting documentation. The applicant shall detail the location
of the proposed site(s), all equipment and accessory equipment being
proposed as part of the small wireless facility, and shall certify
that the applicant has included all information required by the Borough
and by all applicable codes. The application packet shall be signed
by an authorized representative of the applicant. The cover letter
shall also include the applicant's name (including any corporate or
trade name), and the name, address, email address, and telephone number
of a local representative responsible for the application. If the
applicant is a wireless infrastructure provider, the name and contact
information for all wireless service providers that will use the proposed
small wireless facility must be provided. Applicant shall also self-certify
subject to 18 Pa.C.S.A. § 4904 that the filing and approval
of the application is required by the wireless provider to provide
additional capacity or coverage for wireless services.
(4)
Applicant's construction plans and drawings including, but not
limited to, a description of the required work and renderings of the
proposed small wireless facility and the proposed site. Said plans
and drawings shall show all equipment being proposed as part of the
small wireless facility, detailed site plans showing the location
of the small wireless facility, and details regarding proposed construction
and/or excavations, if any. Photo simulations depicting the small
wireless facility from at least three locations near the proposed
site shall also be included.
(a)
If the small wireless facility is proposed for co-location on
an existing or replacement utility pole or wireless support structure
that currently supports existing attachments, the depiction shall
show the location and dimensions of all such attachments.
(b)
If the proposed small wireless facility will be installed on
a new or replacement utility pole or wireless support structure, the
depiction shall include the color, dimensions, material, location,
and type of utility pole or wireless support structure proposed.
(c)
Applicant's construction plans and drawings shall also comply
with and include any information required by the Borough's wireless
facilities design manual.
(5)
The manufacturer and model, proposed location, and physical
dimensions, including weight and volume, of each piece of equipment
proposed as part of the small wireless facility.
(6)
A written certification by a structural engineer licensed in
the Commonwealth of Pennsylvania confirming that the proposed small
wireless facility and wireless support structure are structurally
sound and shall not endanger public health and safety.
(7)
A seal and signature of a professional engineer, licensed in
the Commonwealth of Pennsylvania and certifying compliance with all
local, state, and federal laws and regulations applicable to the proposed
small wireless facility, including applicable standards for radiofrequency
emissions.
(8)
Certification of the application's compliance with all requirements
of this chapter.
(9)
Proof that the applicant has mailed to the owners of all property
within 150 feet of the proposed small wireless facility a notice that
the applicant is submitting an application to the Borough for placement
or modification of a small wireless facility in the right-of-way,
which notice must include:
(a)
The proposed location of the small wireless facility; and
(b)
A description and scale image of the proposed small wireless
facility consistent with that contained in the application.
(10)
A detailed request for and, explanation of the justification
in support of, any waiver requested from the requirements of this
chapter.
(11)
Where an application is made to install a small wireless facility
with a new utility pole, the application must include sufficient information
to demonstrate that an applicant cannot meet the service reliability
and functional objectives of the application by co-locating on an
existing utility pole or municipal pole instead of installing a new
utility pole. To demonstrate this requirement, the applicant may submit
with its application a certification that it has made this determination
in good faith and shall also provide a supporting documented summary
of the basis for the determination. The applicant's determination
in this regard shall be based on whether the wireless provider can
meet the service objectives of the application by co-locating on an
existing utility pole or municipal pole on which:
(a)
The applicant has the right to co-location;
(b)
The co-location is technically feasible and would not impose
substantial additional cost; and
(c)
The co-location would not obstruct or hinder travel or have
a negative impact on public safety.
An application shall not be administratively complete unless
all of the required elements set forth above are included in the application.
H. Timing of application review.
(1)
Within 10 business days of receiving an application, the Borough
will determine and notify the applicant in writing whether the application
is incomplete. If the Borough determines that an application is incomplete,
the written notice will specifically identify the information not
included with the application. The time for the Borough to process
the application shall restart on the date the applicant provides all
of the information required to complete the application. The processing
deadline may be tolled or extended by a written agreement of the applicant
and the Borough. Receipt of an application may occur on any business
day of the Borough.
(2)
The Borough shall process applications on a nondiscriminatory
basis and applications shall be deemed approved if the Borough fails
to approve or deny the application within 60 days of receipt of a
complete application to co-locate and within 90 days of receipt of
a complete application to replace an existing utility pole or install
a new utility pole with small wireless facilities attached. A permit
associated with an application deemed approved under this subsection
shall be deemed approved if the Borough fails to approve or deny the
permit within seven business days after the date of filing the permit
application with the Borough unless there is a public safety reason
for the delay. An applicant shall provide written notice to the Borough
within 72 hours of when it discovers that a deemed approval has occurred.
Written notice may be received by USPS or courier.
(3)
Where the Borough denies an application because of defects found
therein, the applicant may cure the deficiencies identified by the
Borough and resubmit the application within 30 days of receiving the
written basis for the denial. No permit application fee is required
for an application resubmitted pursuant to this section. Following
resubmission, the Borough shall approve or deny the application within
30 days of the resubmission date. An applicant shall not be entitled
to more than one submission.
I. Once approved, the applicant shall be required to coordinate installation
of the small wireless facility to result in the least interference
with the public use of the right-of-way as possible.
2. Placement. Small wireless facilities and accessory equipment shall
be located so as not to cause any physical or visual obstruction to
pedestrian or vehicular traffic, create safety hazards to pedestrians
and/or motorists, or to otherwise inconvenience public use of the
right-of-way as determined by the Borough in its sole discretion.
3. Deadlines for completion. Any permittee granted a permit pursuant
to this chapter for purposes of co-location, modification, or replacement
of a small wireless facility, including installation of a new wireless
support structure with a small wireless facility attached shall complete
the construction work that is the subject of said permit within one
year of the date the permit is issued. The Borough and any applicant
or permittee may agree in writing to extend the period of construction
for a period of greater than one year.
4. Compensation for right-of-way use.
A. The holder of any permit issued for a small wireless facility pursuant
to this chapter shall pay the Borough an annual fee for use and occupancy
of the right-of-way. The fee shall be established pursuant to a fee
schedule adopted by the Borough as amended from time to time by resolution
or otherwise. Unless amended by a resolution, the fee shall be $270
per small wireless facility and $270 per new utility pole to be used
with a small wireless facility.
B. The permittee and/or owner of each small wireless facility shall
be invoiced for the first annual fee on the date the permit is issued,
prorated based on the proportion of the calendar year then remaining.
Subsequent invoicing shall be prospective and occur each January.
Said invoices shall be paid within 30 days of receipt thereof. Any
unpaid invoice shall be subject to interest accruing on the unpaid
amount at 18% per annum beginning on the 31st day from the date of
invoice until paid.
5. Design guidelines and aesthetic requirements. Small wireless facilities shall be designed, installed, operated, and maintained in compliance with all design guidelines, aesthetic requirements, or concealment measures adopted or amended by the Borough from time to time. Such requirements, if any, are contained in the wireless facilities design manual, a copy of which shall be kept on file in the Borough office. Applicant's design shall comply with all other applicable codes of the Borough, including Chapter
27, Zoning. The wireless facilities design manual may be amended by resolution from time to time by a resolution of the Borough Council.
[Ord. No. 541, 10/20/2021]
1. Compliance.
A. The small wireless facility applicant shall submit proof of compliance
with all applicable codes, including but not limited to Act 50 and
those established by the FCC, as part of any complete small wireless
facility application.
B. If such applicable codes are modified, the permittee of the small
wireless facility shall bring such small wireless facility into compliance
with the modified applicable codes within three months of the effective
date of such applicable codes unless a different compliance term is
required by the controlling state or federal agency. Failure to bring
such small wireless facilities into compliance shall constitute grounds
for revocation of a permit and the removal of the small wireless facility
at the permittee's expense.
C. All small wireless facilities shall meet or exceed all applicable
standards set forth by the state or federal government, as well as
any applicable industry standard. In case of conflict, the most stringent
requirements shall prevail. All necessary certifications shall be
obtained by the applicant or permittee, as applicable, and shall be
provided to the Borough.
D. Small wireless facilities shall be installed and modified in a manner
that:
(1)
Ensures that placement of small wireless facilities on existing
structures is within the tolerance of those structures.
(2)
Ensures that the applicant's or permittee's use does not inconvenience
the public, interfere with the primary uses of the right-of-way, or
hinder the ability of the Borough or other government entities to
improve, modify, relocate, abandon, or vacate the right-of-way or
any portion thereof, or to cause the improvement, modification, relocation,
vacation, or abandonment of facilities in the right-of-way.
(3)
Ensures that the applicant's or permittee's use does not obstruct,
endanger, or hinder travel or public safety within a right-of-way,
damage or interfere with other utility facilities located within a
right-of-way or obstruct or interfere with the legal use of the right-of-way
by the Borough or other utility.
(4)
Ensures that the Borough bears no risk or liability because
of the installation or modification of a small wireless facility.
E. Small wireless facilities in the public right-of-way requiring the
installation of a new wireless support structure shall not be located
immediately in front of any building entrance or exit.
F. All small wireless facilities shall comply with all applicable requirements
of the Americans with Disabilities Act and all applicable codes, including those applicable to
streets and sidewalks.
G. No small wireless facility shall be installed, modified, placed,
operated, repaired, or maintained in a manner that causes, or is likely
to cause, interference with the Borough's infrastructure, equipment,
or services. Said infrastructure, equipment, and services include,
but are not limited to, the Borough's traffic signal system, public
safety radio system, electric distribution system, or Borough communications
system. If a small wireless facility causes such interference, then
the permittee, at its own expense, shall take all steps necessary
to immediately correct and eliminate the interference. The Borough
may terminate a permit for a small wireless facility based on such
interference if the interference is not remedied by the permittee.
2. Attachment to municipal structures.
A. Subject to the requirements and processes of this chapter, Act 50,
and all applicable codes, applicants are permitted to co-locate small
wireless facilities on municipal poles. The Borough will allow co-location
on municipal poles using the process required under Act 50 and applicable
codes unless:
(1)
The small wireless facility would cause structural or safety
deficiencies to the municipal pole, in which case the Borough and
applicant shall work together for any make-ready work or modifications
or replacements that are needed to accommodate the small wireless
facility as otherwise required in this chapter; or
(2)
The Borough has reserved the space on the municipal pole for
other public purposes.
B. The Borough shall allow the co-location of small wireless facilities
to structures owned by the Borough in the following preferred order,
from most to least preferable:
(1)
Traffic signage poles without traffic signals;
(2)
Traffic signage poles with traffic signals;
(3)
Nondecorative light poles;
(4)
Telecommunications poles;
(5)
Electric distribution poles;
C. If the small wireless facility applicant is proposing the co-location
of a small wireless facility on a lower preference structure, it shall
be a condition to the approval of the application that the small wireless
facility applicant provide evidence that co-location on a higher preference
structure or wireless support structure owned by a third party is
not technically feasible. The cost of co-locating on a higher preference
structure or wireless support structure shall not be included in evaluating
technical feasibility. Co-location of a small wireless facility on
a municipal pole shall not create or vest in any applicant, wireless
provider, or wireless service provider any ownership or property rights
in such municipal poles except as expressly provided for in this chapter
or pursuant to applicable law.
D. This chapter shall not be construed to require the Borough to construct,
retain, extend, place, or maintain any municipal pole or other municipal
facilities not needed for the Borough's own utility service requirements.
E. An applicant has no right to object to the Borough granting permission
to any party regarding use of a municipal pole.
F. Where applicable, an applicant's co-location of a small wireless
facility on a municipal pole shall be placed and maintained at all
times in accordance with the requirements, specifications, rules and
regulations of the latest edition of the National Electrical Safety
Code and subsequent revisions thereof, any governing authority having
jurisdiction, this chapter, and any reasonable design standards and
rules governing pole attachments in the Borough as the Borough may
adopt from time to time, and shall be otherwise consistent with generally
accepted industry standards.
G. If requested by the Borough, each small wireless facility co-located
on a municipal pole shall be identified at all times by an identifying
marker/band/tag stating the name of person holding the permit. The
marker/band/tag shall, at a minimum, a) be reasonably durable under
the typical weather conditions in the area and b) have coloring unique
to the person holding the permit. If the Borough elects to require
marking/banding/tagging by the wireless permittee, the Borough shall
provide the permittee information concerning the type and color of
marker/band/tag to be used in satisfying the requirements of this
section. Such markers/bands/tags shall also be capable of being read
unaided from the ground by an adult of typical height and vision.
H. Make-ready work shall be performed as specified in §
19-108 of this chapter.
3. Insurance. Each permittee and any person who owns or operates a small
wireless facility shall annually provide the Borough with a certificate
of insurance, in a form satisfactory to the Borough Solicitor, evidencing
general liability coverage in the minimum amount of $1,000,000 per
occurrence and property damage coverage in the minimum amount of $1,000,000
per occurrence covering the small wireless facility and naming the
Borough as an additional insured on each insurance policy. All permits
issued for location of a small wireless facility pursuant to this
chapter shall be deemed to be revoked in the event said insurance
policy is cancelled, expires, or ceases to exist.
4. Outdated equipment. As part of the construction, modification, or
replacement of a small wireless facility, the permittee shall remove
any obsolete or abandoned equipment from the wireless support structure
or utility pole.
5. Weather. All small wireless facilities shall be designed to withstand
the effects of wind, ice, water, and heat to the standard designed
by the American National Standards Institute as prepared by the engineering
departments of the Electronics Industry Association, and Telecommunications
Industry Association (ANSI/TIA-222, as amended), or to the industry
standard applicable to the structure.
6. Inspection reports. All permittees shall submit inspection reports
to the Borough upon request to ensure structural integrity and compliance
with all applicable codes. Inspection reports shall be delivered to
the Borough by the permittee within 30 days of request by the Borough.
These inspection reports may include, but are not limited to, descriptions
of routine maintenance or repair work, and descriptions of the physical
degradation of a small wireless facility.
7. Maintenance. The following maintenance requirements shall apply:
A. All small wireless facilities shall be fully automated and unattended
on a daily basis and shall be visited only for maintenance, repair,
or replacement.
B. Such maintenance shall be performed to ensure the upkeep of the small
wireless facility, to promote the health, safety, and general welfare
of the Borough's residents, and to remain compliant with all applicable
codes.
C. All maintenance activities shall utilize nothing less than the best
available technology in accordance with the applicable standard in
the industry for preventing failures and accidents. Maintenance logs
shall be timely provided to the Borough upon request.
8. Historic districts. No small wireless facility may be located within
75 feet of any property, or on a building or structure that is listed
on either the National or Pennsylvania Registers of Historic Places,
or eligible to be so listed under the Pennsylvania Historic District
Act, located within a historic district, or is included in the official
historic structures list maintained by the Borough.
[Ord. No. 541, 10/20/2021]
1. Process.
A. If use of a small wireless facility and/or its dedicated accessory
equipment is to be discontinued, the permittee shall provide written
notice to the Borough of its intent to discontinue use and the date
when the use shall be discontinued. A small wireless facility and/or
dedicated accessory equipment not operated for a period of 12 months
shall be considered abandoned. Discontinued or abandoned small wireless
facilities, or portions of small wireless facilities, shall be removed
as follows:
(1)
All abandoned or unused small wireless facilities and accessory
equipment shall be removed within 90 days of the cessation of operations
at the site or receipt of notice that the small wireless facility
has been deemed abandoned by the Borough unless a time extension is
approved by the Borough.
(2)
If the small wireless facility or accessory equipment is not
removed within 90 days of the cessation of operations at a site, or
within any longer period approved by the Borough, the small wireless
facility and/or associated facilities and equipment may be removed
by the Borough and the cost of removal assessed against the owner
of the small wireless facility regardless of the owner's or operator's
intent to operate the small wireless facility in the future.
(3)
The Borough reserves the right to pursue all available remedies
under the law to ensure removal of the small wireless facility and
restoration of the site at the expense of the permittee. Any delay
by the Borough in taking action shall not invalidate the Borough's
right to take action.
B. With respect to a small wireless facility co-located on a municipal
pole, the Borough may abandon a municipal pole upon 30 days' notice
to the permittee. Permittee must remove or transfer all facilities
from abandoned municipal poles within the same 30 days unless granted
additional time by the Borough. The Borough will not unreasonably
withhold consent of such request for additional time. The permittee
shall post a decommissioning bond in the amount of 100% of the total
cost of decommissioning with the Borough. If the Borough has no attachment(s)
on said municipal poles and the permittee has not removed or transferred
its facilities therefrom, the Borough may, in its sole discretion:
1) revoke the permit for that municipal pole; or 2) remove the small
wireless facilities at the permit holder's expense, with no liability
falling on the Borough except in the case of gross negligence or willful
misconduct.
2. Required discontinuance.
A. The Borough may require the discontinuance of a small wireless facility
if:
(1)
The Borough determines that the space is needed for public purpose;
or
(2)
The Borough desires to decommission the utility pole; or
(3)
The Borough designates the area of the subject utility pole
or wireless support structure as an underground district.
B. Within 90 days of receipt of a notice of discontinuance from the
Borough, the permittee shall remove the small wireless facility and
any accessory equipment, including the utility pole and any wireless
support structures if the permittee's small wireless facilities and
accessory equipment are the only wireless facilities on the utility
pole. The Borough shall not be liable to the permittee or applicant
as a result of requiring the discontinuance of a small wireless facility
in the event that an applicant or permittee is prevented from placing
and/or maintaining its small wireless facility pursuant to this section.
[Ord. No. 541, 10/20/2021]
1. Each person that owns or operates a small wireless facility shall,
at its sole cost and expense, indemnify, defend and hold harmless
the Borough, its elected and appointed officials, employees and agents,
at all times against any and all claims for personal injury, including
death, and property damage arising in whole or in part from, caused
by or connected with any act or omission of the person, its officers,
agents, employees or contractors arising out of, but not limited to,
the construction, installation, operation, maintenance or removal
of the small wireless facility. Each person that owns or operates
a small wireless facility, or holds a permit issued pursuant to this
chapter, shall defend any actions or proceedings against the Borough
in which it is claimed that personal injury, including death, or property
damage was caused by the permitting, construction, installation, operation,
maintenance, and/or removal of a small wireless facility. The obligation
to indemnify, hold harmless and defend shall include, but not be limited
to, the obligation to pay judgments, verdicts, injuries, liabilities,
damages, reasonable attorneys' fees, reasonable expert fees, court
costs and all other costs of indemnification.
2. Further, a permittee shall repair all damage to the right-of-way
or any other land so disturbed, directly caused by the activities
of the permittee or the permittee's contractors and return the right-of-way
in as good of condition as it existed prior to any work being done
in the right-of-way by the permittee. If the permittee fails to make
the repairs required by the Borough within 30 days after written notice,
the Borough may perform those repairs and charge the permittee the
reasonable, documented cost of the repairs plus a penalty of $500.
In the event an applicant or permittee has failed to pay any costs
invoiced by the Borough for repair work or penalties charged pursuant
to this section, the Borough shall not process any further applications
unless or until the applicant or permittee has paid the amount assessed
for the repair costs and the assessed penalty. Any unpaid invoice
shall be subject to interest accruing on the unpaid amount at 18%
per annum beginning on the 31st day from the date of invoice until
paid.
[Ord. No. 541, 10/20/2021]
All wireless permits under this chapter are issued subject to
the following minimum conditions:
1. The permittee shall at all times maintain compliance with this chapter
and all applicable codes.
2. The permittee shall at all times maintain with the Borough accurate
contact information for the permittee and all wireless service providers
making use of the small wireless facility, which shall include, at
minimum, a name, phone number, mailing address, and email address
for at least one natural person.
3. The Borough shall have the right to support, repair, disable, or
remove any components of a small wireless facility if the small wireless
facility threatens imminent harm to persons or property.
4. The permittee shall undertake all reasonable efforts to avoid undue
adverse impacts to adjacent persons, properties and/or uses that may
arise from the construction, operation, maintenance, modification,
or removal of the small wireless facility.
5. The permittee shall maintain all small wireless facilities and any
associated structures in a good condition and in a neat and clean
manner in accordance with all approved application documents and conditions
of approval.
6. The permittee shall retain full and complete copies of all permits,
applications, and other regulatory approvals issued in connection
with the facility, which includes without limitation all conditions
of approval, approved plans, resolutions, and other documentation
associated with the permit or regulatory approval. In the event the
Borough cannot locate any such full and complete permits, applications,
or other regulatory approvals in its own official records, and the
permittee fails to retain full and complete records in the permittee's
files, any ambiguities or uncertainties that would be resolved through
an examination of the missing documents will be presumed resolved
against the permittee.
7. Every small wireless facility shall at all times comply with applicable
FCC regulations governing radio frequency emissions, and failure to
comply with such regulations shall be treated as a material violation
of the terms of the permit.
8. Make-ready work. For any municipal pole co-location application,
the Borough shall provide a good-faith estimate for any make-ready
work, including any make-ready engineering costs, necessary to enable
a municipal pole to support the requested co-location by a wireless
provider, including pole replacement, if necessary, within 60 days
after receipt of a complete application. The Borough shall also provide
the applicant with a schedule for completing any make-ready work.
Make-ready work, including pole replacement, shall be completed within
60 days of written acceptance of the good-faith estimate by the applicant.
Any unpaid invoice sent by the Borough to an applicant for fees for
make-ready work shall be subject to interest accruing on the unpaid
amount at 18% per annum beginning on the 31st day from the date of
invoice until paid.
9. Future use. The Borough may reserve space on an existing municipal
pole for future public uses in a documented and approved plan as adopted
at the time an application is filed. A reservation of space shall
not preclude co-location, the replacement of an existing utility pole
or the installation of a new utility pole. If the replacement of a
municipal pole is necessary to accommodate co-location and the reserved
future use, the wireless provider shall pay for the replacement municipal
pole and the municipal pole shall accommodate the future use.
10. An applicant or the applicant's designee shall ensure that a contractor
or subcontractor performing construction, reconstruction, demolition,
repair, or maintenance work on a small wireless facility deployed
under this chapter meets and attests to all of the following requirements:
A. Maintain all valid licenses, registrations or certificates required
by the federal government, the commonwealth or the applicable local
government entity that is necessary to do business or perform applicable
work.
B. Maintain compliance with the Act of June 2, 1915 (P.L. 736, No. 338),
known as the Workers' Compensation Act, the Act of December 5, 1936
(P.L. 2897, No. 1), known as the Unemployment Compensation Law, and bonding and liability insurance requirements as specified
in the contract for the project.
C. Has not defaulted on a project or been suspended on a project by
the federal government, the commonwealth, or a local government entity
within the previous three years.
D. Has not been convicted of a misdemeanor or felony relating to the
performance or operation of the business of the contractor or subcontractor
within the previous 10 years.
E. Has completed the United States Occupational Safety and Health Administration's
ten-hour safety training course or similar training sufficient to
prepare workers for any hazards that may be encountered during their
work on the small wireless facility.
F. Prior to the commencement of work, the contractor and/or subcontractor
shall provide the Borough with a certificate of insurance, in a form
satisfactory to the Borough Solicitor, evidencing general liability
coverage in the minimum amount of $1,000,000 per occurrence and property
damage coverage in the minimum amount of $1,000,000 per occurrence
covering the small wireless facility and naming the Borough as an
additional insured on each insurance policy. All permits issued for
location of a small wireless facility pursuant to this chapter shall
be deemed to be revoked in the event said insurance policy is cancelled,
expires, or ceases to exist.
G. The contractor and/or subcontractor shall, at its sole cost and expense,
indemnify, defend and hold harmless the Borough, its elected and appointed
officials, employees and agents, at all times against any and all
claims for personal injury, including death, and property damage arising
in whole or in part from, caused by or connected with any act or omission
of the contractor and/or subcontractor, its officers, agents, employees
or contractors arising out of, but not limited to, the construction,
installation, operation, maintenance or removal of the small wireless
facility. The obligation to indemnify, hold harmless and defend shall
include, but not be limited to, the obligation to pay judgments, verdicts,
injuries, liabilities, damages, reasonable attorneys' fees, reasonable
expert fees, court costs and all other costs of indemnification.
11. A permit issued pursuant to this chapter shall not be assigned or
otherwise transferred without the prior written approval of the Borough.
12. Approval of an application shall authorize the applicant to, subject
to the permit requirements and the applicant's right to terminate
at any time, operate and maintain small wireless facilities and any
accessory equipment on a utility pole covered by the permit for a
period of not less than five years, which shall be renewed for two
additional five-year periods if the applicant is in compliance with
the criteria set forth in Act 50 or applicable codes consistent with
Act 50 and the applicant has obtained all necessary consent from the
utility pole owner.
[Ord. No. 541, 10/20/2021]
The Borough may revoke a wireless permit for failure to comply
with the conditions of the permit or applicable codes after providing
adequate notice to the permittee and allowing the permittee an opportunity
to cure any noncompliance. Within 60 days of suspension or revocation
of a permit due to noncompliance with Act 50 or other applicable codes,
the applicant shall remove the small wireless facility and any accessory
equipment, including the utility pole and any wireless support structures
if the applicant's small wireless facilities and accessory equipment
are the only wireless facilities on the utility pole. Within 90 days
of the end of a permit term or an extension of the permit term, the
applicant shall remove the small wireless facility and any accessory
equipment, including the utility pole and any wireless support structures
if the applicant's small wireless facilities and accessory equipment
are the only wireless facilities on the utility pole.
[Ord. No. 541, 10/20/2021]
If a permittee removes or relocates a small wireless facility
from the right-of-way under this chapter, the permittee must restore
the right-of-way to its prior condition in accordance with Borough
specifications. If the permittee fails to make the restorations required
by this chapter, the Borough at its option may do such work. In that
event, the permittee shall pay to the Borough, within 30 days of billing
thereof, all costs and expenses incurred by the Borough in restoring
the right-of-way. Any unpaid invoice shall be subject to interest
accruing on the unpaid amount at 18% per annum beginning on the 31st
day from the date of invoice until paid.
[Ord. No. 541, 10/20/2021]
1. This chapter shall be enforced by the Code Officer of the Borough.
If the Code Officer determines that any person has violated this chapter,
then a notice of violation shall be issued by the Code Officer describing
the violation and a time period for compliance. If the person to whom
the notice of violation is issued fails to comply as directed, the
Code Officer shall order the discontinuance of noncompliance and may
pursue any other enforcement remedies available at law or equity.
2. Any person who has violated the provisions of this chapter, upon
being found liable therefor in a civil enforcement proceeding commenced
by the Borough, shall pay a judgment of not more than $600 plus all
court costs, including reasonable attorney fees incurred by the Borough
as a result thereof. No judgment shall commence or be imposed, levied
or payable until the date of the determination of a violation by the
Magisterial District Judge. If the defendant neither pays nor timely
appeals the judgment, the Borough may enforce the judgment pursuant
to the applicable rules of civil procedure. Each day that a violation
continues shall constitute a separate violation.
3. Nothing herein contained shall prevent the Borough from taking such
other lawful action as is necessary to prevent or remedy any violation.