Town of Westfield, NJ Article III Right-of-Way Permits

§ 17-3.1 Pole-mounted antennas; access to right-of-way; right-of-way agreements.

(a) No person shall operate or place any type of pole, wireless pole, utility pole, pole-mounted antenna, or any small wireless facility within the municipal right-of-way without first obtaining a right-of-way permit as required by this chapter and entering into a right-of-way agreement with the Town pursuant to the provisions of this chapter.

(b) Notwithstanding Subsection (a) above, no right-of-way permit or right-of-way agreement shall be required when a utility service is replacing an existing pole with a replacement pole that is substantially identical to, or smaller than, the pole being replaced as to its height and diameter, and the material of the replacement pole is substantially identical to the material of the existing pole.

(c) The terms of said right-of-way agreement shall include:

(1) A term not to exceed 15 years;

(2) Reasonable insurance requirements;

(3) Designation of an individual as a point of contact available during business hours;

(4) Imposed fines for unauthorized installations;

(5) Requirements regarding the repair, maintenance, removal, and relocation of the equipment;

(6) A reference to the siting standards set forth in this chapter; and

(7) Any other items which may be reasonably required, including such applicable requirements set forth in § 17-3.4.

§ 17-3.2 Application to utilities regulated by Board of Public Utilities; other entities.

Notwithstanding any franchise or right-of-way agreement to the contrary, all small wireless facilities proposed to be placed within the municipal right-of-way, by the Board of Public Utilities, and all other entities lawfully within the municipal right-of-way, shall be subject to the standards and procedures set forth in this chapter and shall require right-of-way permits for the siting of any poles, antennas, small wireless facilities, and cabinets in the municipal right-of-way.

§ 17-3.3 Right-of-way permits, siting standards for poles, antennas, and cabinets in right-of-way.

(a) Except as provided in § 17-3.1(b) above, no pole, antenna, or cabinet shall be installed within the municipal right-of-way without the issuance of a right-of-way permit.

(b) Pole siting standards.

(1) Height. No proposed pole shall be taller than 35 feet or 110% of the height of poles in the surrounding streetscape, whichever is higher.

(2) Distance from curbline. No proposed pole shall be farther than 18 inches from the curbline.

(3) Location, safety, and aesthetics.

a. No proposed pole shall be erected in the right-of-way unless it:

1. Is replacing an existing pole, provided that the replacement pole is substantially identical to the pole being replaced as to its height, diameter, and material.

2. Is replacing an existing pole with a new pole that is being installed, at least in part, for a small wireless facility purpose, provided that such replacement pole has been approved pursuant to the application process as required and defined by this chapter, and provided further that any such replacement pole is designed to be the minimum functional height and width required to support a proposed antenna installation and meet FCC requirements. Poles and antennas and similar structures shall be no greater in diameter or other cross-sectional dimensions than is necessary for the proper functioning of a small wireless facility.

b. For sites in the residential zones, a new proposed pole shall be located a minimum of 200 linear feet from any other existing pole or proposed pole along the same side of the street, or for sites in the nonresidential zones, a minimum of 100 linear feet from any other existing pole or proposed pole along the same side of the street.

c. If a new proposed pole is sought to be erected for the purpose of providing utility service, no such proposed pole shall be erected in any area with underground utilities.

d. No new or replacement proposed pole shall inhibit any existing sight triangles or sight distances.

e. No new or replacement proposed pole shall be erected unless it allows adequate room for the public to pass and repass across, along and through the right-of-way.

f. Any new or replacement proposed pole must be finished and/or painted and/or otherwise camouflaged, in conformance with the best available stealth technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties.

g. If a new proposed pole is to be sited in any historic district or on any historic landmark of the Town, each such proposed pole must be reviewed and approved by the Historic Preservation Committee.

h. If an applicant proposes to replace an existing pole in order to accommodate a small wireless facility, the replacement pole shall match the appearance of the original pole to the extent feasible, unless another design better accomplishes the objectives of this chapter. Such replacement pole shall not exceed the height of the pole it is replacing by more than seven feet.

i. If an exception pursuant to § 17-3.5(f) below is granted for placement of a new pole or poles in the right-of-way, new poles shall be designed to resemble existing poles in the right-of-way, including size, height, color, materials, and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced, unless another design better accomplishes the objectives of this section.

j. Any necessary equipment is permitted on a pole where said pole otherwise conforms with the standards set forth in this § 17-3.3.

(c) Ground-level cabinet siting standards.

(1) Ground-level cabinets are prohibited in the municipal right-of-way in all residential zones and any future residential zones.

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

a. Is less than 28 cubic feet in volume;

b. Is finished and/or painted so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties;

c. Does not inhibit any existing sight triangles or sight distance; and

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

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

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

a. Does not exceed three cubic feet in volume.

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

c. Does not inhibit any sight triangles or sight distance.

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

e. Does not interfere with the frequencies used by a public safety agency for public safety communications equipment, a public safety spectrum, or any other spectrum licensed by a public safety agency, or violate any harm claim thresholds established by the FCC or any other governmental agency.

f. Does not extend 24 inches above the height of an existing utility pole; nor shall any portion of the antenna or equipment mounted on a pole be less than 18 feet above any drivable road surface.

g. Notwithstanding the above, no small wireless facility shall be located on a pole that is less than 26 feet in height, and no facility shall exceed 35 feet in height, including, but not limited to, the pole and any antenna that protrudes above the pole.

h. Pole-mounted equipment, other than pole-mounted cabinets, shall not exceed six cubic feet in dimension.

(2) Pole-mounted cabinets are permitted on existing poles in all residential zones and nonresidential zones, provided that each pole-mounted cabinet:

a. Does not exceed 16 cubic feet; and

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

c. Does not inhibit any sight triangles or sight distance; and

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

(e) Space occupied. Facilities shall be designed to occupy the least amount of space in the right-of-way that is technically feasible.

(f) Location.

(1) Each component part of a small wireless facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, inconvenience to the public's use of the right-of-way, or safety hazards to pedestrians and motorists.

(2) A small wireless facility shall not be located within any portion of the public right-of-way interfering with access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve housing structures, or any other vital public health and safety facility.

(3) Each pole-mounted small wireless facility must be separated by at least 1,500 feet.

(4) All small wireless facility cables, including, but not limited to, electrical and utility cables, between the pole and any accessory equipment shall be placed underground, if not infeasible as described within Subsection (h) below.

(5) All new wires needed to service a small wireless facility must be installed within the width of the existing utility pole so as to not exceed the diameter and height of the existing utility pole.

(6) To the extent that such co-location would not impose technical limitations, degrade the structural integrity of a pole, or harm the surrounding streetscape, wireless facilities should be co-located on existing poles and on such existing poles on which carriers' wireless facilities are already located.

(g) Americans with Disabilities Act compliance. All telecommunications facilities shall be built in compliance with the Americans with Disabilities Act (ADA).

(h) Accessory equipment. To preserve community aesthetics, all accessory equipment (with the exception of the smallest possible electrical meter boxes and any other equipment that may not be so placed) shall be placed within an underground vault whenever there are no physical or site constraints to make an underground vault infeasible, except as may be determined by the Administrative Review Team. Equipment which may not be placed in an underground vault shall be pole-mounted to the extent feasible. When above ground is the only feasible location for a particular type of accessory equipment and when such accessory equipment cannot be pole-mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five feet and a total footprint of 15 square feet, and shall be screened and camouflaged to the fullest extent possible, including the use of landscaping or alternate screening. Required electrical meter cabinets shall be adequately screened and camouflaged. Infeasibility under this subsection shall not be demonstrated by mere cost to construct an underground vault or place the equipment within the vault.

(i) Where feasible, as new technology becomes available, the permittee shall:

(1) Place above-ground telecommunications facilities below ground, including, but not limited to, accessory equipment that has been mounted to a telecommunications tower or mounted on the ground; and

(2) Replace larger, more visually intrusive facilities with smaller, less visually intrusive facilities, after receiving all necessary permits and approvals required pursuant to the Westfield Town Code.

(j) The permittee shall not place any facilities that will deny access to, or otherwise interfere with, any public utility, easement, or right-of-way located on the site. The permittee shall allow the Town reasonable access to, and maintenance of, all utilities and existing public improvements within or adjacent to the site, including, but not limited to, pavement, trees, public utilities, lighting, and public signage.

(k) At all times, all required notices and signs shall be posted on the site as required by local, state and federal agencies and authorities, and as approved by the Town. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans.

(l) At all times, the permittee shall ensure that the facility complies with the most current regulatory and operational standards, including, but not limited to, radio frequency emissions standards adopted by the FCC and antenna height standards adopted by the Federal Aviation Administration.

(m) The small wireless facility shall be subject to such conditions, changes, or limitations as are from time to time deemed necessary by the Town Engineer for the purpose of: a) protecting the public safety and general welfare, b) preventing interference with pedestrian and vehicular traffic, and c) preventing damage to the public right-of-way or any property adjacent to it. The Town may modify the permit to reflect such conditions, changes, or limitations by following the same notice and public hearing procedures as are applicable to the grant of a small wireless facility permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the Town by the permittee.

(n) The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the Town shall be moved to accommodate a small wireless facility unless the Town determines that such movement will not adversely affect the Town or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the Town's structure, improvement, or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right-of-way, the permittee shall provide the Town with documentation establishing to the Administrative Review Team's satisfaction that the permittee has the legal right to use or interfere with any other pole, structure, improvement, or property within the public right-of-way to be affected by the applicant's facilities.

(o) The permittee shall assume full liability for damage or injury caused to any property or person by the facility.

(p) The permittee shall repair, at its sole cost and expense, any damage, including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to Town streets, sidewalks, walks, curbs, gutters, trees, parkways, streetlights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility lines and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation or maintenance of a small wireless facility in the public right-of-way. The permittee shall restore such areas, structures, and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In addition to the obligations set forth herein, the permittee must comply with all applicable provisions of Chapter 24, Article II, related to street openings and excavations. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the Town Engineer, the Town Engineer shall cause such repair to be completed at permittee's sole cost and expense.

(q) Prior to issuance of a building permit, the applicant shall obtain the Town Engineer's approval of a tree protection plan that has been prepared by a certified arborist if the installation of the small wireless facility will be located within the canopy of a street tree, or a protected tree on private property, or within a ten-foot radius of the base of such a tree. Depending on site-specific criteria (e.g., location of tree, size, and type of tree, etc.), a radius greater than 10 feet may be required by the Town Engineer.

(r) Should any utility company offer electrical service that does not require the use of a meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within 30 days of such service being offered and reasonably restore the area to its prior condition.

(s) The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to Town, if and when made necessary by:

(1) Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities, including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by Town or any other public agency;

(2) Any abandonment of any street, sidewalk, or other public facility;

(3) Any change of grade, alignment or width of any street, sidewalk, or other public facility; or

(4) A determination by the Town Engineer that the small wireless facility has become incompatible with public safety or general welfare or the public's use of the public right-of-way.

(t) Any modification, removal, or relocation of the facility shall be completed within 90 days of written notification by the Town unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review, and approval of a permit amendment pursuant to the applicable construction codes and the Westfield Town Code. The permittee shall be entitled, on the permittee's election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the applicable construction codes and the Westfield Town Code allow. In the event the facility is not modified, removed, or relocated within said period of time, the Town may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances as provided in the Westfield Town Code, the Town may modify, remove, or relocate telecommunications facilities without prior notice to the permittee, provided the permittee is notified within a reasonable period thereafter.

§ 17-3.4 Permit application content and process.

(a) The requirements of this section shall not apply in any circumstance in which a utility service provider that already has, as of the date of the adoption of this chapter, an existing utility pole, provided that the pole replacing the existing utility pole is identical, substantially identical, or smaller than the pole being replaced as to its height and diameter, and the material of the replacement pole is identical or substantially identical to the material of the existing pole.

(b) In all other circumstances, specifically, when: 1) a utility service provider seeks to erect a utility pole in the municipal right-of-way that is taller, larger, and/or of a different material than the existing utility pole; 2) a utility provider seeks to erect a new utility pole in the municipal right-of-way; 3) any applicant seeks to erect a new or replacement pole in the municipal right-of-way on which any small wireless facility is proposed to be placed; 4) any applicant seeks to erect any ground-level cabinet in the municipal right-of-way; or 5) any applicant seeks to erect any pole-mounted antenna or any other small wireless facility on an existing pole in the municipal right-of-way, a permit as set forth herein shall be required.

(c) Pre-application meeting. Prior to making a formal application with the Town for use of the municipal right-of-way, all applicants are advised to schedule a meeting with the Town Engineer to review the scope of the applicant's proposal.

(d) Content of permit applications. All applications for a permit required by this chapter and all required submittals must be made in writing by the applicant or the applicant's authorized agent on such form as the Town Engineer may prescribe, which form shall include the following information, in addition to all other information determined necessary by the Town Engineer:

(1) Full name and contact information for the facility owner, facility operator, agent (if any), and property owner, and related letter(s) of authorization of the facility and/or property owner.

(2) The type of use being proposed, including a full written description of the proposed facility, its purpose, and specifications.

(3) A detailed site and engineering plan of the proposed site containing the exact proposed location of the site, created by a qualified licensed engineer and in accordance with requirements set by the Town Engineer.

(4) A signed and sealed survey prepared by a New Jersey licensed professional land surveyor demonstrating that any proposed pole and/or proposed ground-level cabinet is located within the municipal right-of-way.

(5) Photographs of the site equipment and an accurate visual impact analysis with photo simulations, including reasonable line-of-sight locations from public streets or other adjacent viewpoints, and a map that shows the photo location of each view angle.

(6) Proposed landscaping and/or nonvegetative screening (including required safety fencing) plan for all aspects of the site.

(7) Written documentation demonstrating a good-faith effort to locate the proposed pole and/or small wireless facility in the least intrusive location and screened to the greatest extent feasible in accordance with the site selection and visual impact criteria of this chapter.

(8) If the application is for a small wireless facility that will be located within the public right-of-way, the applicant shall certify that it is a telephone corporation or state the basis for its claimed right to enter the right-of-way and provide a copy of its certificate of public convenience and necessity ("CPCN"), if a CPCN has been issued by the New Jersey Board of Public Utilities.

(9) A written description identifying the geographic service area for the subject installation, accompanied by a plan and maps showing anticipated future installations and modifications for the following two years, in addition to the master plan described by this section.

(10) A written report that analyzes acoustic levels for the proposed utility service, small wireless facility, and all associated equipment, including without limitation all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators in order to demonstrate compliance with all local, county and state noise laws. The acoustic analysis must be prepared and certified by an engineer and include an analysis of the manufacturers' specifications for all noise-emitting equipment and a depiction of the noise contours for the proposed equipment relative to all adjacent property lines. In lieu of a written report, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits.

(11) If the applicant claims it requires an exception to the requirements of this chapter, all information and studies necessary for the Town to evaluate that claim.

(12) An application fee and deposits towards anticipated municipal expenses, as set forth in this chapter, which deposit shall cover any expenses incurred by the Town, including staff time, a consultant review as set forth in § 17-3.5(d) of this chapter, other legal and third-party services, and all other costs of whatever type or variety, incurred for the processing, review, commenting upon, evaluation, hearing, and consideration of the application. The applicant shall submit a fully executed cost recovery agreement in the form provided by the Town wherein the applicant agrees to replenish the deposited amount in full and fully reimburse the Town otherwise where the advance deposit is insufficient to cover all of the Town's costs related to the application. Where the advance deposit is insufficient to pay for the costs incurred by the Town, the Town Engineer shall invoice the applicant, who shall pay the invoice in full within 10 calendar days after receipt of the invoice. No permit shall be issued to an applicant where that applicant has not timely paid a required fee, provided any required deposit, or paid any invoice as required by the Town Code. A "reasonable deposit" under this subsection shall take into consideration the scope and scale of the proposal being made by the application, the Town's prior costs incurred with like or similar applications, and whether one or more exceptions are being requested by the applicant. Any portion of the deposit that is not expended by the Town shall be reimbursed to the applicant upon the completion of the application and determination process.

(13) An agreement in the form provided by the Town that the applicant agrees to defend, hold harmless and fully indemnify the Town, its officers, employees, agents, attorneys, and volunteers, from any claim, action or proceeding brought against the Town or its officers, employees, agents, or attorneys to attack, set aside, void, or annul any such approval of the Town. This indemnification agreement shall be in a form acceptable to the Town Attorney and shall include, but not be limited to, damages, fees and/or costs awarded against the Town, if any, and cost of suit, attorney's fees, and other costs, liabilities, and expenses incurred in connection with such proceeding, whether incurred by the applicant, the Town, and/or the parties initiating or bringing such proceeding. The agreement shall also include a provision obligating the applicant to indemnify the Town for all of the Town's costs, fees, and damages which the Town incurs in enforcing the indemnification provisions of this section. Nothing in this section shall prohibit the Town from participating in the defense of any proceeding. In the event that the applicant is required to defend the Town in connection with any proceeding described in this section, the Town shall retain the right to approve: a) the counsel to so defend the Town; b) all significant decisions concerning the manner in which the defense is conducted; and c) any and all settlements, which approval shall not be unreasonably withheld.

(14) In connection with an application for a small wireless facility, a master plan which identifies the location of the proposed facility in relation to all existing and potential locations in the Town that are reasonably anticipated for construction within two years of submittal of the application. Applicants may not file, and the Town shall not accept, applications that are not consistent with the applicant's master plan for a period of two years from approval of a small wireless facility use permit unless: a) the applicant demonstrates materially changed conditions which could not have been reasonably anticipated to justify the need for a small wireless facility site not shown on an applicant's master plan submitted to the Town within the prior two years; b) the applicant establishes that the application is needed to prevent the actual or effective prohibition of the provision of telecommunications wireless services under the Telecommunications Act of 1996; or c) the applicant includes all of the documentation necessary to request an exception under this chapter.

(15) A siting analysis which identifies a minimum of five other feasible locations within or outside the Town which could serve the area intended to be served by the utility service or small wireless facility, unless the applicant provides compelling technical reasons for fewer than the minimum. The alternative site analysis should include at least one co-location site (in the case of a small wireless facility), if feasible.

(16) Any request for exceptions to be made to the provisions of this Code shall be submitted at the time of the application. The request shall include an analysis as to the availability and feasibility of other alternatives to the exception(s) that are being requested and a description of the need for the exception and analysis of how the need would be met by the exception being requested.

(17) A radio frequency ("RF") exposure compliance report prepared and certified by an RF engineer licensed by the State of New Jersey that certifies that the proposed site, as well as any co-located facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels [in watts effective radio power ("ERP")] for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the site.

(18) Every applicant applying for authorization to construct, modify, or remove a wireless communications facility located on private or public property must include with its application a written authorization signed by the property owner.

(19) Any other studies or information as determined to be necessary by the Town Engineer in order to consider an application for utility service or a small wireless facility may be required.

§ 17-3.5 Administrative Review Team meeting.

(a) For all uses for which a permit is required under this chapter, the application for such permit shall be reviewed by the Administrative Review Team in a meeting held for that purpose. Such meeting may be dispensed with by the Administrative Review Team in its discretion.

(b) Prior to any meeting of the Administrative Review Team (or if no meeting is held, prior to any decision by the Administrative Review Team), the applicant for which such review is being sought shall take all of the following actions:

(1) Send written notice to both the owner(s) of real property, as shown on the latest tax roll, within 200 feet of the proposed utility pole or small wireless facility, of the pendency of the filing of such an application, including with such notice copies of preliminary drawings of the proposed project at a scale no smaller than one inch equals 16 feet. No application for review will be accepted as complete unless it contains evidence acceptable to the Town Engineer that such notice has been sent or such determination would otherwise be in conflict with federal or state law.

(2) All telecommunications facilities applications made under this section shall be expedited so as to comply with the shot clocks set forth in the FCC Order entitled "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment," WT Docket No. 17-79; "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment," WC Docket No. 17-84, and any other applicable FCC rules and regulations.

(c) Findings. The Administrative Review Team shall not approve any application unless all of the following findings are made:

(1) The proposed facility complies with all applicable provisions of this chapter.

(2) The proposed facility has been designed and located to achieve compatibility with the surrounding streetscape to the maximum extent reasonably feasible.

(3) For telecommunications facilities, the applicant has submitted a statement of its willingness to allow other carriers to co-locate on the proposed small wireless facility wherever technically and economically feasible and where co-location would not harm surrounding streetscape compatibility.

(4) Noise generated by any equipment will not be excessive or annoying, nor be detrimental to the public health, safety, and welfare, and will not exceed the standards set forth in this chapter.

(5) The applicant has provided substantial written evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise or other agreement with the Town permitting them to use the public right-of-way.

(6) The applicant has demonstrated that the facility will not interfere with the use of the public right-of-way, existing subterranean infrastructure, or the Town's plans for modification or use of such location and infrastructure.

(d) The applicant must pay for the cost of any review required under this section and for any technical consultant's testimony in any meeting or hearing as requested by the Town Engineer and must provide a reasonable advance deposit of the estimated cost of such review with the Town prior to the commencement of any work. The cost of this review shall be paid by the applicant through a deposit and cost recovery agreement pursuant to the application requirements stated within § 17-3.6 below.

(e) If the Administrative Review Team rejects a right-of-way permit, it shall set forth the factual basis for such a rejection in writing.

(f) Exceptions. Exceptions pertaining to any provision of this chapter, including, but not limited to, exceptions from findings that would otherwise justify denial, may be granted by the Administrative Review Team if the Administrative Review Team makes the finding that:

(1) Denial of the facility as proposed would violate federal law, state law, or both; or

(2) A provision of this chapter, as applied to an applicant, would deprive the applicant of its rights under federal law, state law, or both.

(g) Independent expert.

(1) The Town Planner is authorized to retain on behalf of the Town any one or more independent, qualified consultants to review any application for a permit for a utility service pole or poles, or a small wireless facility, to review the technical aspects of the application, including but not limited to the following matters:

a. The accuracy, adequacy, and completeness of submissions.

b. Compliance with applicable radio frequency emission standards.

c. Whether any requested exception is necessary to avoid actual or effective prohibition of provision of wireless telecommunications services or use of the public right-of-way on a nondiscriminatory basis, which may include a determination as to whether the requested exception would close a significant gap in coverage and is the least intrusive means of doing so.

d. Technical demonstration of the unavailability of alternative sites, facility designs or configurations, and coverage analysis.

e. The applicability, reliability, and sufficiency of analyses or methodologies used by the applicant and the validity of conclusions reached or claims made by applicant.

f. Any other application issue or element that requires expert or specialized knowledge.

(h) An appeal from a final decision made by the Administrative Review Team shall be made to the Town Council. If the Town Council denies any application for a right-of-way permit under this section, it shall do so in writing and set forth the factual basis for the denial.

(i) Waiver. The Administrative Review Team and/or the Town Council may waive any siting standard set forth in § 17-3.3 where the applicant demonstrates that the strict enforcement of said standard:

(1) Will prohibit or have the effect of prohibiting any interstate or intrastate telecommunications service pursuant to 47 U.S.C. § 253(a); or

(2) Will prohibit or have the effect of prohibiting personal wireless service pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II); or

(3) Will violate any requirement set forth in the FCC Order entitled "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment," WT Docket No. 17-79; "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment," WC Docket No. 17-84; or

(4) Will prohibit, or have the effect of prohibiting, the ability of an entity to provide utility service to any prospective customer within the Town.

(j) An applicant may request an exception only at the time of applying for a required permit and not at any time thereafter. The request must include both the specific provision(s) of this chapter from which the exception is sought and the basis of the request. Any request for an exception after the Town has deemed an application complete shall be treated as a new application.

§ 17-3.6 Right-of-way permit fees; deposits towards anticipated municipal expenses.

(a) Every right-of-way permit application shall include a one-time right-of-way permit fee in the following amounts:

(1) One to five sites: $500.

(2) Each additional site: $100.

(3) Each new pole (not a co-location) intended to support a small cell facility or small wireless facility: $1,000.

(4) Recurring annual fee, per pole/per year, and per ground-level cabinet/per year: $270.

(b) Deposit towards anticipated municipal expenses.

(1) In addition to the right-of-way permit fee, the Town Engineer may, in his or her sole discretion, require the posting of a $2,000 deposit towards anticipated municipal expenses related to an application made pursuant to this chapter.

(2) Commencing on the fifth anniversary of the granting of a right-of-way permit, the right-of-way use fee shall be adjusted by a percentage amount equal to the percentage change in the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index which occurred during the previous five-year period for the New York-Northern New Jersey-Long Island, NY-NJ-PA metropolitan statistical area.

(3) Any applicant's deposit towards anticipated municipal expenses shall be placed in an escrow account. If said deposit contains insufficient funds to enable the Town to perform its review, the Chief Financial Officer of the Town shall provide the applicant with a notice of insufficient balance. In order for review to continue, the applicant shall, within 10 days of said notice, post a deposit to the account in an amount to be mutually agreed upon.

(4) The Town's Chief Financial Officer shall, upon request by the applicant, after a final decision has been made by the Administrative Review Team or the Town Council, as the case may be, regarding the pending right-of-way permit application, refund any unused balance from the applicant's deposit towards anticipated municipal expenses.

§ 17-3.7 Operation and maintenance standards.

(a) All utility service operators and operators of small wireless facilities must comply at all times with the following operation and maintenance standards. All necessary repairs and restoration shall be completed by the permittee, owner, or operator within 48 hours:

(1) After discovery of the need by the permittee, owner, operator, or any designated maintenance agent; or

(2) After the permittee, owner, operator, or any designated maintenance agent receives notification from a resident or the Planning Director.

(b) All facilities, including, but not limited to, utility poles, telecommunications facilities, accessory equipment, lighting, fences, walls, shields, ground-level or pole-mounted cabinets, artificial foliage or camouflage, and the facility site, shall be maintained in good condition, including ensuring the facilities are reasonably free of:

(1) General dirt and grease;

(2) Chipped, faded, peeling, and cracked paint;

(3) Rust and corrosion;

(4) Cracks, dents, and discoloration;

(5) Missing, discolored, or damaged artificial foliage or other camouflage;

(6) Graffiti, bills, stickers, advertisements, litter and debris;

(7) Broken and misshapen structural parts; and

(8) Any damage from any cause.

(c) All trees, foliage, or other landscaping elements approved as part of a facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead, or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the Town Engineer.

(d) The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation.

(e) Each facility shall be operated and maintained at all times in compliance with applicable federal regulations, including FCC radio frequency emissions standards.

(f) Each facility shall be operated and maintained to comply at all times with local, county, and state noise regulations and shall be operated and maintained in a manner that will minimize noise impacts to surrounding residents. Except for emergency repairs, any testing and maintenance activities that will be audible beyond the municipal right-of-way shall only occur between the hours of 8:00 a.m. and 5:00 p.m. on Monday through Friday, excluding holidays, unless alternative hours are approved by the Town Engineer. Backup generators, if permitted, shall only be operated during periods of power outages or for testing.

(g) Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the standards set forth in this section and the conditions of approval.

§ 17-3.8 Miscellaneous provisions.

(a) In addition to receiving a right-of-way permit, an applicant must also obtain all necessary road opening permits, construction permits, and any other requirement set forth in the Town Code for the Town of Westfield or the New Jersey statutes.

(b) The Town's consent for use of county roads, as required pursuant to N.J.S.A. 27:16-6, shall take the form of a right-of-way permit subject to the standards and application process set forth in this chapter.

(c) Effect on other ordinances. Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of the Westfield Town Code, including but not limited to obtaining any necessary encroachment or building permits. In the event of a conflict between any provision of this chapter and other provisions of the Westfield Town Code, this chapter shall control.

(d) Effect of state or federal laws. In the event that state or federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, the permits required by this chapter for those facilities shall be deemed to be ministerial permits. For those facilities, a ministerial permit shall be required prior to installation or modification of a small wireless facility, and all provisions of this chapter shall be applicable to any such facility with the exception that the required permit shall be reviewed and administered as a ministerial permit by the Town Engineer rather than as a discretionary permit. Any conditions of approval set forth in this chapter or deemed necessary by the Town Engineer shall be imposed and administered as reasonable time, place, and manner rules.