[HISTORY: Adopted by the Borough Council of the Borough of
Pen Argyl 10-5-2021 by Ord. No. 714. Amendments noted where applicable.]
The Borough of Pen Argyl hereby finds:
A.
The General Assembly of the Commonwealth of Pennsylvania has enacted
Act 50 of 2021 establishing a framework for regulation by local political
subdivisions of the placement of antennas and associated equipment
on new or existing structures in the Borough's public rights-of-way
for deployment of "small cell" wireless telecommunications facilities
(hereinafter "small cell installations").
B.
The deployment of small cell installations may have both positive
and negative impacts on our community. Multiple small cell installations
within the public right-of-way can impact property values; pose a
threat to the public health, safety and welfare; create traffic and
pedestrian safety hazards; impact trees where proximity conflicts
may require trimming of branches or require removal of roots; create
visual and aesthetic blights and potential safety concerns from excessive
size, height, weight, noise or lack of camouflaging which negatively
impact the quality and character of the Borough.
C.
The Borough currently regulates all wireless telecommunications facilities
in the public right-of-way through a zoning and permit process. The
Borough's existing code must be updated to reflect current telecommunications
trends and the provisions of Act 50 of 2021. Further, the existing
code provisions were not specifically designed to address the unique
legal and practical issues that arise in connection with multiple
small cell installations deployed in the public rights-of-way.
D.
Federal regulations have changed substantially since the Borough
last updated its code regarding wireless telecommunications facilities.
A recent FCC Order suggests that all local jurisdictions comply with
various rules and recommendations on the exercise of local aesthetic,
zoning, public works, and fee schedules when dealing with small cell
installations. Thus the Borough is in clear need of its own updated
regulations for small cell installations in the public right-of-way
given the number of anticipated applications and new legal timelines
during which the Town must act.
E.
The Borough recognizes its responsibilities under the federal Telecommunications
Act of 1996 and Act 50 of 2021 and believes that it is acting consistent
with the current state of the law in ensuring that development activity
does not endanger public health, safety, or welfare. The Borough intends
this chapter to ensure that the installation, augmentation and relocation
of small cell installations in the public rights-of-way are conducted
in such a manner as to lawfully balance the legal rights of applicants
under the federal Telecommunications Act and Act 50 of 2021 with the
rights, safety, privacy, property and security of residents of the
Borough.
F.
This chapter is not intended to, nor shall it be interpreted or applied
to:
(1)
Prohibit or effectively prohibit any wireless telecommunications
service provider's ability to provide wireless services;
(2)
Prohibit or effectively prohibit any entity's ability to provide
any interstate or intrastate telecommunications service;
(3)
Unreasonably discriminate among providers of functionally equivalent
services;
(4)
Deny any request for authorization to place, construct or modify
wireless telecommunications service facilities on the basis of environmental
effects of radio frequency emissions so long as such wireless facilities
comply with the FCC's regulations concerning such emissions;
(5)
Prohibit any collocation or modification that the Borough may not
deny under federal or state law; or
(6)
Otherwise authorize the Borough to preempt any applicable federal
or state law.
G.
Based on the foregoing, the Borough Council of Pen Argyl Borough
finds and determines that the preservation of public health, safety
and welfare requires that this chapter be enacted and be effective
immediately upon adoption.
As used in this chapter, the following terms shall have the
meanings indicated:
A single telecommunication tower, pole, mast, cable, wire
or other structure supporting multiple antennas, dishes, transmitters,
repeaters, or similar devices owned or used by more than one public
or private entity.
Includes, but is not limited to, the following unless located
within a recognized Historic District:
A single ground- or building-mounted receive-only radio or television
antenna including any mast, for the sole use of the tenant occupying
the residential parcel on which the radio or television antenna is
located; with an antenna height not exceeding 25 feet.
A ground or building mounted citizens band radio antenna, including
any mast, if the height (post and antenna) does not exceed 35 feet.
A ground-, building-, or tower-mounted antenna operated by a
federally licensed amateur radio operator as part of the Amateur Radio
Service, if the height (post and antenna) does not exceed 35 feet.
A ground- or building-mounted receive-only radio or television
satellite dish antenna, which does not exceed 36 inches in diameter,
for the sole use of the resident occupying a residential parcel on
which the satellite dish is located; provided the height of said dish
does not exceed the height of the ridgeline of the primary structure
on said parcel.
Mobile services providing public information coverage of news
events of a temporary nature.
Handheld devices such as cell phones, business-band mobile radios,
walkie-talkies, cordless telephones, garage door openers and similar
personal-use devices.
Government-owned and operated receive and/or transmit telemetry
station antennas for supervisory control and data acquisition (SCADA)
systems for water, flood alert, traffic control devices and signals,
stormwater, pump stations and/or irrigation systems, with heights
not exceeding 35 feet.
Borough-owned and operated antennae used for emergency response
services, public utilities, operations and maintenance if the height
does not exceed 70 feet.
Telecommunication facilities less than 55 feet in height, in
compliance with the applicable sections of this chapter, located on
a parcel owned by the Borough and utilized for public and/or quasipublic
uses where it is found by the Borough Board to be compatible with
the existing uses of the property and serving the public interest.
Telecommunication facilities, including multiple antennas, in
compliance with the applicable sections of this chapter, located on
an industrial parcel and utilized for the sole use and purpose of
a research and development tenant of said parcel, where it is found
by the planning director to be aesthetically compatible with the existing
and surrounding structures.
Telecommunication towers, poles or similar structures greater
than 50 feet in height, including accessory equipment such as transmitters,
repeaters, microwave dishes, horns, and other types of equipment for
the transmission or receipt of such signals, as well as support structures,
equipment buildings and parking areas.
The area on, below, or above property that has been designated
for use as or is used for a public roadway, highway, street, sidewalk,
alley or similar purpose, and for purposes of this chapter shall include
public utility easements, but only to the extent the Borough has the
authority to permit use of the area for this purpose. The term does
not include a federal interstate highway or other areas that are not
within the legal jurisdiction, ownership or control of the Borough.
All equipment required for the operation and maintenance
of so-called "small cell" wireless communications systems that transmit
and/or receive signals but are not "major telecommunications facilities,"
including antennas, microwave dishes, power supplies, transformers,
electronics, and other types of equipment required for the transmission
or receipt of such signals.
A.
Permit required. No small cell installation shall be constructed,
erected, modified, mounted, attached, operated or maintained within
the Borough on or within any public right-of-way without the issuance
of a permit. No approval granted under this chapter shall confer any
exclusive right, privilege, license or franchise to occupy or use
the public right-of-way of the Borough for delivery of telecommunications
services or any other purpose.
B.
Application content. All permit applications must include:
(1)
Detailed site and engineering plans for each proposed small cell
installation, including all associated equipment necessary for its
operation;
(2)
A master plan showing the geographic service area for the proposed
small cell installation(s), and all of applicant's existing,
proposed and anticipated installations in the Borough;
(3)
Photographs of proposed facility equipment;
(4)
Visual impact analyses with photo simulations;
(5)
Certification by a certified radio-frequency engineer that the small
cell installation will be in compliance with the FCC standards for
RF emissions as they relate to the general public, including aggregate
emissions for all collocated equipment;
(6)
Certification that the applicant has a right under state law to install
wireless telecommunications facilities in the public right-of-way;
(7)
Documentation demonstrating a good faith effort to locate the small
cell installation in accordance with the preferred provisions of this
chapter;
(8)
Documentation that owners of all properties within 500 feet of the
proposed small cell installation have been notified in writing via
certified mail of the proposed installation, including its exact location;
C.
Application fee. The Borough shall assess an application fee of $500
for one to five antennas collocated and $100 for each antenna over
five to cover the Borough's costs of processing, reviewing, evaluating,
conducting a public hearing, and other activities involved in consideration
of the application, and conducting oversight of the construction of
the small cell installation to ensure compliance with zoning requirements.
In addition, any permit requesting a new or relocated pole shall require
an application fee of $1,000.
D.
Consultant fee. The Borough shall have the right to retain an independent
technical consultant to assist the Town in its review of the application.
The reasonable cost of the review shall be paid by the applicant.
E.
Compliance bond. Upon approval of the application, the permittee shall be required to post a bond in the amount of $50,000 for each small cell installation, such bond to be held and maintained during the entire period of the permittee's operation of each small cell installation in the Borough as a guarantee that no such installation, including any collocated equipment, exceeds or will exceed the allowable FCC limits for RF radiation exposure to the general public as determined by a qualified independent RF engineer under Subsection G(2) hereof.
F.
Indemnification. The permittee shall provide an executed agreement
in the form provided by the Borough, pursuant to which the permittee
agrees to defend, hold harmless and fully indemnify the Town, its
officers, employees, agents, attorneys, and volunteers, from (i) any
claim, action or proceeding brought against the Borough or its officers,
employees, agents, or attorneys to attack, set aside, void, or annul
any such approval of the Borough or (ii) a successful legal action
brought against the Borough for loss of property value or other harm
caused by the placement or operation of a small cell installation.
This indemnification agreement shall be in a form acceptable to the
Borough Solicitor and shall include, but not be limited to, damages,
fees and/or costs awarded against the Borough, 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
permittee, the Borough and/or the parties initiating or bringing such
proceeding. The agreement shall also include a provision obligating
the permittee to indemnify the Borough for all of the Borough's
costs, fees and damages which the Borough incurs in enforcing the
indemnification provisions of this section.
G.
Annual recertification.
(1)
Each year, commencing on the first anniversary of the issuance of
the permit, the permittee shall submit to the Borough an affidavit
which shall list all active small cell wireless installations it owns
within the Borough by location, certifying that (1) each active small
cell installation is covered by liability insurance in the amount
of $2,000,000 per installation, naming the Borough as additional insured;
and (2) each active installation has been inspected for safety and
found to be in sound working condition and in compliance with all
federal safety regulations concerning RF exposure limits.
(2)
The Borough shall have the right to employ a qualified RF engineer
to conduct an annual random and unannounced test of the permittee's
small cell wireless installations located within the Borough to certify
their compliance with all FCC radio-frequency emission limits as they
pertain to exposure to the general public. The reasonable cost of
such tests shall be paid by the permittee.
(3)
In the event that such independent tests reveal that any small cell
installation or installations owned or operated by the permittee or
its lessees, singularly or in the aggregate, is emitting RF radiation
in excess of FCC exposure guidelines as they pertain to the general
public, the Borough shall notify the permittee and all residents living
within 1,500 feet of the small cell installation(s) of the violation,
and the permittee shall have 48 hours to bring the small cell installation(s)
into compliance. Failure to bring the small cell installation(s) into
compliance shall result in the forfeiture of all or part of the compliance
bond, and the Borough shall have the right to require the removal
of such installation(s), as the Borough in its sole discretion may
determine is in the public interest.
(4)
Any small cell wireless installation which is no longer in use shall
be removed by the permittee within 30 days of being taken out of use.
(5)
Any small cell wireless installation which is not removed within
30 days after being listed as no longer in use in the annual recertification
affidavit shall be subject to a fine of $100/day until such installation
is removed.
(6)
Where such annual recertification has not been properly or timely
submitted, or equipment no longer in use has not been removed within
the required thirty-day period, no further applications for small
cell wireless installations will be accepted by the Borough until
such time as the annual recertification has been submitted and all
fees and fines paid.
H.
Nonpermitted installations. Any small cell installation constructed,
erected, modified or enhanced prior to the issuance of a site-specific
permit from the Borough shall be removed prior to the submission of
any other application. No application for a small cell installation
shall be considered, and no so-called "shot clock" for approval shall
commence, while such unauthorized installations remain.
A.
Siting guidelines. The purpose of this section is to provide guidelines
to applicants and the reviewing authority regarding the preferred
locations and configurations for small cell installations in the Borough,
provided that nothing in this section shall be construed to permit
a small cell installation in any location that is otherwise prohibited
by this chapter or any other section of the Borough code.
B.
Order of preference; location. The order of preference for the location
of small cell installations in the Borough, from most preferred to
least preferred, is:
A.
The permittee must construct, install and operate the small cell
installation in strict compliance with the plans and specifications
included in the application.
B.
Where feasible, as new technology becomes available, the permittee
shall replace larger, more visually intrusive facilities with smaller,
less visually intrusive facilities, after receiving all necessary
permits and approval required by the Borough.
C.
The permittee shall submit and maintain current at all times basic
contact and site information on a form to be supplied by the Borough.
The permittee shall notify the Borough of any changes to the information
submitted within seven days of any change, including the name or legal
status of the owner or operator.
D.
At all times, all required notices and signs shall be posted on the
site as required by the FCC and state law, and as approved by the
Borough. The location and dimensions of a sign bearing the emergency
contact name and telephone numbers shall be posted pursuant to the
approved plans.
E.
The permittee shall maintain current at all times liability and property
insurance for each small cell installation in the public right-of-way
in the amount of $2,000,000 naming the Borough as additional insureds.
F.
The proposed small cell installation shall have an adequate fall
zone to minimize the possibility of damage or injury resulting from
pole collapse or failure, ice fall or debris fall, and to avoid or
minimize all other impacts upon adjoining properties.
G.
Every effort shall be made to locate small cell installations no
less than 1,500 feet away from the permittee's or any lessee's
nearest other small cell installation, or within feet of any permanent
residential dwelling.
H.
Single or collocated small cell installations must be mounted on
an existing structure such as a utility or lighting pole that can
support its weight and the weight of any existing collocated equipment.
All new wires needed to service the small cell installation must be
located within the width of the existing structure so as to not exceed
the diameter and height of the existing utility pole.
I.
All equipment not to be installed on or inside the pole must be located
underground, flush to the ground, within three feet of the utility
pole. Each installation is to have its own dedicated power source
to be installed and metered separately.
This chapter shall apply to all small cell installations and
collocated small cell installations in the Borough and shall not apply
to any exempted telecommunications facility or major telecommunications
facility.
