[Ord. No. 2021-08, 10/21/2021]
With respect to small wireless facilities and associated utility poles located within the right-of-way, these regulations are intended to limit interference with the use of streets, sidewalks, alleys, parkways, public utilities, public views, and certain corridors, public ways and places; limit the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic; limit interference with the other facilities and operations of facilities lawfully located in rights-of-way or public property; limit environmental damage, including damage to trees; respect the character of the neighborhoods and other areas in which facilities are installed; and facilitate rapid deployment of facilities to provide the benefits of advanced wireless services to the Township and its residents and to persons traveling through the Township.
[Ord. No. 2021-08, 10/21/2021]
1. 
The following definitions shall apply within this Part:
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 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.
APPLICANT
A communications service provider that submits an application.
APPLICATION
A request submitted by an applicant to a municipality: 1) for a permit to co-locate small wireless facilities; or 2) to approve the installation, modification or replacement of a utility pole with small wireless facilities attached.
CO-LOCATE
To install, mount, maintain, modify or replace small wireless facilities on an existing utility pole or other wireless support structure in the public right-of-way.
COMMUNICATIONS FACILITY
A set of equipment and network components, including wires and cables and associated facilities, used by a communications service provider to provide a communications service.
COMMUNICATIONS SERVICE PROVIDER
Any 1) 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) 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) telecommunications carrier as defined in Section 3(44) of the Communications Act of 1934 [47 U.S.C. § 153(51)]; or 4) wireless service provider.
DAY
Calendar day.
EMERGENCY
A condition that constitutes a clear and immediate danger to the health, welfare, or safety of the public, or caused or is likely to cause facilities in the right-of-way to be unusable and result in loss of the services provided.
FCC
The Federal Communications Commission of the United States.
FEE
A one-time charge.
HISTORIC DISTRICT OR BUILDING
A building, property, or site, or collection thereof, 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 through 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 an historical site by the Pennsylvania Historical and Museum Commission pursuant to 37 Pa.C.S.A. (relating to historical and museums); or (4) within a historical district created pursuant to the Historic District Act, 53 P.S. § 8001 et seq.
LAW
Federal, commonwealth, or local law, statute, common law, code, rule, regulation, order, or ordinance.
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
An 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.
PERMIT
A written authorization of general applicability required by the Township to perform an action or initiate, continue, or complete a project.
PERSON
An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the Township.
RATE
A recurring charge.
RIGHT-OF-WAY or ROW
The area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property, but not including a federal interstate highway, in the Township.
SMALL WIRELESS FACILITY
A wireless facility used by a wireless service provider that meets 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 definition.
TECHNICALLY FEASIBLE
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.
TOWNSHIP
Lower Macungie Township, Lehigh County, Pennsylvania.
TOWNSHIP POLE
A utility pole own owned, managed, or operated by or on behalf of the Township.
UTILITY POLE
A pole or similar structure used, or that may be used, in whole or in part, by or for telecommunications, electric distribution, lighting, traffic control, signage or a similar function or 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
Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including: 1) equipment associated with wireless communications; and 2) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term does not include the structure or improvements on, under, or within which the equipment is co-located or the coaxial or fiber optic cables that are not immediately adjacent to or directly associated with a particular antenna.
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 PROVIDER
A wireless infrastructure provider or a wireless services provider.
WIRELESS SERVICES
Any services, whether at a fixed location or mobile, provided to the public using wireless facilities.
WIRELESS SERVICES PROVIDER
A person who provides wireless services.
WIRELESS SUPPORT STRUCTURE
The definition contained in the Act of October 24, 2012 (P.L. 1501, No. 191), known as the Wireless Broadband Collocation Act[1] is hereby adopted by reference.
[1]
Editor's Note: See 53 P.S. § 11702.1 et seq.
[Ord. No. 2021-08, 10/21/2021]
This Part supersedes all other Township ordinances or parts thereof in conflict herewith, including but not limited to Chapter 27, Zoning, and Zoning Attachment 8. The co-location of a small wireless facility and the installation or modification of associated utility poles subject hereto are specifically exempted from zoning review.
[Ord. No. 2021-08, 10/21/2021]
1. 
Permit Required. A permit is required to deploy within the right-of-way a small wireless facility or associated new utility pole with an attached small wireless facility, including but not limited to any effort to: 1) co-locate, maintain, and/or modify a small wireless facility; 2) replace an existing utility pole for the purpose of co-location; or 3) install a new utility pole with an attached small wireless facility.
2. 
Permit Not Required. With respect to a small wireless facility or associated new utility pole with an attached small wireless facility within the right-of-way, a permit is not required for: 1) maintenance or repair work; 2) the replacement of a small wireless facility with another small wireless facility that is substantially similar or the same size or smaller; or 3) the installation, placement, maintenance, operation or replacement of micro wireless facilities strung on cables between existing utility poles by or for a communications service provider authorized to occupy the right-of-way, in compliance with National Electrical Safety Code.
3. 
Permit Scope. A permit issued pursuant hereto authorizes the applicant to:
A. 
Undertake the installation, modification, or co-location; and
B. 
Subject to applicable relocation requirements and the applicant's right to terminate at any time, operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of not less than five years, which the Township must renew for equivalent durations so long as the facilities are in compliance with the criteria set forth in this Part, as amended.
4. 
Installation, modification, or co-location for which a permit is granted shall be completed within one year of the issuance date unless the Township and the applicant agree to extend this period or a delay is caused by the lack of commercial power or communications facilities at the site.
5. 
No Property Right or Other Interest Created. A permit does not create a property right or grant the applicant authority to impinge upon the rights of others who may already have an interest in the ROW.
6. 
Noncompliance. Unless otherwise specific herein, the Township shall provide the applicant with written notice of any noncompliance of this Part and provide the wireless carrier with 15 days to cure any such noncompliance. If the wireless provider refuses or fails to cure the noncompliance within that period, any relevant permit issued pursuant may be revoked.
[Ord. No. 2021-08, 10/21/2021]
1. 
Applications, Generally.
A. 
Permit applications shall be on forms provided by the Township.
B. 
Application Requirements. An application made pursuant hereto shall contain the following:
(1) 
The applicant's name, address, telephone number, email address, and its interest in the work.
(2) 
If the applicant is different from the ultimate wireless provider, then the wireless provider's name, address, telephone number, and email address, including specific information for an authorized contact.
(3) 
The names, addresses, telephone numbers, and email addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application.
(4) 
A general description of the proposed work and the purposes and intent of the small wireless facility. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters likely to be affected or impacted by the work proposed.
(5) 
A site plan, with sufficient detail to show the proposed location of items the applicant seeks to install in the ROW, including any manholes or poles, the size, type, and depth of any conduit or enclosure.
(6) 
A report by a qualified engineer which shows that the small wireless facility will comply with all applicable FCC regulations.
(7) 
Copies of all applications submitted for permits and/or copies of all permits obtained which will be required by law in association with the work authorized by a permit issued pursuant hereto, including but not limited to permits generally required for excavation, grading, and the closure of sidewalks and streets.
(8) 
An attestation that the small wireless facilities will be fully constructed by a wireless services provider within one year after the permit issuance date, unless the Township and the applicant agree in writing to extend this period.
(9) 
An attestation that, to the best of the applicant's knowledge, the information contained in the application is true.
C. 
Proprietary Information. The applicant shall conspicuously stamp in red "proprietary" or "confidential" on any application pages or exhibits submitted to the Township which contain proprietary or confidential information.
2. 
Consolidated Applications. An applicant may submit a consolidated application for 20 or fewer small wireless facilities if all the relevant small wireless facilities are substantially the same type. The denial of one or more of the small wireless facilities which are part of the application shall not delay the review and processing of the other small wireless facilities.
3. 
Number of Applications. So long as the Township's population is less than 50,000, a wireless provider may not submit, directly or through any third party, applications for more than 20 small wireless facilities, in aggregate, in any thirty-day period.
4. 
Application Fees. All applications for permits shall be accompanied by an appropriate application fee.
A. 
The fee for an application seeking approval for five or fewer co-located small wireless facilities shall be $500. The fee for each additional small wireless facility included in the application shall be $100.
B. 
The fee for an application seeking approval of a small wireless facility that requires the installation of a new or replacement utility pole shall be $1,000.
5. 
Review and Processing.
A. 
All applications shall be processed on a nondiscriminatory basis.
B. 
Within 10 days of receiving an initial application, the Township will notify the applicant whether the application is materially complete. If an application is incomplete, the Township will identify the missing documents or information. The time frames set forth in Subsection 3 shall restart at zero on the date which the applicant submits all the documents and information identified by the Township to make the application complete. If the applicant's supplemental submission again fails to make the application complete, following notice consistent herewith, the applicable time frame set forth in Subsection 3 shall be tolled until the applicant provides the documents and information needed to render the application complete.
C. 
The Township shall approve or deny an application for co-location of small wireless facility on i) an existing, permitted structure, within 60 days of receipt of the application; or ii) a new permissible structure, within 90 days of receipt of the applications.
D. 
If the Township's population is less than 50,000 and receives within a forty-five-day period more than one consolidated application or 20 separate applications from a single applicant, the processing deadline set forth in Subsection 3 shall be extended 15 days. For the purpose of this calculation, a pending third-party application on behalf of the wireless provider shall be included. Likewise, an application tolled under Subsection 2 shall also be included in this calculation unless and until the application is withdrawn by the applicant. As the processing of applications is completed, the municipality shall process tolled applications in the order of submission, unless the applicant specifies a different order.
E. 
An applicant and the Township may enter into a written agreement to toll the time periods set forth herein.
F. 
If the Township fails to issue a decision on an application for a small wireless facility within the required time periods set forth herein, the application shall be deemed approved.
G. 
Basis for Denial. The Township may deny a proposed co-location of a small wireless facility or installation or modification of a utility pole if:
(1) 
The small wireless facility materially interferes with the safe operation of traffic control equipment, sight lines or clear zones for transportation or pedestrians or compliance with the Americans with Disabilities Act of 1990 (Public Law 101-336, 104 Stat. 327)[1] or similar federal or commonwealth standards regarding pedestrian access or movement;
[1]
Editor's Note: See 42 U.S.C. § 12101 et seq.
(2) 
The small wireless facility fails to comply with this Part;
(3) 
The small wireless facility fails to comply with the requirements specified under the Pennsylvania Small Wireless Facilities Deployment Act;[2] or
[2]
Editor's Note: See 53 P.S. § 11704.1 et seq.
(4) 
The applicant fails to submit a report by a qualified engineer which shows that the small wireless facility will comply with all applicable FCC regulations.
H. 
New Utility Poles. A wireless provider seeking to install a new utility pole shall demonstrate that the new utility pole is required because it cannot meet the service reliability and functional objectives of the application by co-locating on an existing utility pole.
I. 
Denial. If the Township denies an application consistent herewith, the Township shall document the basis for any denial, including the specific provisions of the law or applicable code on which the denial was based. The Township shall then notify the applicant by regular or electronic mail within five business days of the denial. Service of the notice is deemed complete upon deposit in the mail or the transmittal of an email to the appropriate address provided in the application. The applicant may then cure the deficiencies identified by the Township and resubmit the application within 30 days of service of the denial without paying an additional application fee. The Township shall approve or deny the revised application within 30 days. Any subsequent review shall be limited to the deficiencies cited in the denial.
J. 
Township Utility Poles.
(1) 
An application to co-locate a small wireless facility on a Township utility pole shall not be denied unless it fails to meet the requirements of this Part, or the utility pole lacks sufficient capacity which cannot be remedied by rearranging, expanding, or otherwise reengineering the facilities with all costs associated therewith being be reimbursed by the wireless provider.
(2) 
A wireless provider seeking to co-locate a small wireless facility on a Township utility pole shall reimburse the Township for all make-ready work. Within 60 days of the submission of a completed application relevant hereto, the Township shall provide the applicant a good-faith estimate for any make-ready work necessary to enable the Township utility pole to support the requested co-location by a wireless provider, including utility pole replacement if necessary, within 60 days after receipt of a complete application. Make-ready work, including but not limited to utility pole replacement, shall be completed within 60 days of written acceptance of the good-faith estimate by the applicant.
(3) 
The Township may require replacement of the Township utility pole only if the Township demonstrates that the co-location would make the Township pole structurally unsound.
[Ord. No. 2021-08, 10/21/2021]
1. 
Design Requirements. All small wireless facilities and utility poles subject hereto shall comply with the requirements set forth in any design manual adopted by the Board of Commissioners by resolution. The design manual may provide objective design guidelines that include reasonable, technically feasible, nondiscriminatory design or concealment measures, including but not limited to design guidelines for historic districts or on historic buildings within the Township. The Board of Commissioners may from time to time amend the manual also by resolution.
2. 
Technical Requirements. All small wireless facilities and utility poles subject hereto shall comply with the following requirements:
A. 
Height. Small wireless facilities may not extend more than five feet above any existing utility pole with a maximum height of 50 feet above ground level, inclusive of the utility pole and the small wireless facility.
B. 
Utility Poles. Utility pole installations, modifications, and replacements shall be fabricated from material having a degree of strength capable of supporting the small wireless facilities, withstanding wind forces and ice loads in accordance with applicable engineering and Code standards. A modification, installation, or replacement of a small wireless facility shall be securely bound in accordance with applicable engineering standards and Code requirements.
C. 
Color. Unless a different color, approved by the Township, is needed for public safety or service reliability reasons, to the extent technically feasible, the color of small wireless facilities shall be consistent with the structure on which they are installed and, where possible, blend into the structure.
D. 
Wiring and Cabling. Wires and cables connecting the antenna and appurtenances serving the small wireless facility shall be installed in accordance with the version of the National Electrical Code and National Electrical Safety Code adopted by the Township and in force at the time of installation. In no event shall wiring and cabling serving the small wireless facility interfere with any wiring or cabling installed by a cable television or video service operator, electric utility, or telephone utility.
E. 
Guy Wires Restricted. Unless the small wireless facility is proposed to be attached to an existing utility pole which utilizes preexisting guy wires, guy wires and similar support structures may not be used as part of the installation of any small wireless facility.
F. 
Grounding. The small wireless facility, including any ground-mounted equipment, shall be grounded in accordance with the requirements of the most current edition of the National Electrical Code adopted by the Township regarding grounding of wireless facilities.
G. 
Signage. No signs may be installed on a small wireless facility other than warning or notification signs as required by federal law or regulations, or necessary identification and location markings. Identification and location markings shall be the minimal size required for the purpose.
3. 
Other Requirements. Co-location of a small wireless facility subject hereto shall comply with the following requirements:
A. 
Small wireless facilities shall be located such that they do not interfere with public health or the safety of any facility used for co-location, such as, but not limited to, a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility.
B. 
A new utility pole and small wireless facility shall not be installed directly over any water, sewer, or reuse main or service line.
C. 
New utility poles installed to support small wireless facilities shall be made of the same or similar material as existing poles in the immediate area.
D. 
Any tree-disturbing activity necessary for the installation or co-location of small wireless facilities and utility poles installed to support them shall comply with all applicable Township codes and permitting requirements related to tree trimming and/or removal.
E. 
Except when small wireless facilities are co-located on a light pole or where illumination is specifically required by the Federal Aviation Administration or other federal, state, or local regulations, small wireless facilities and utility poles or wireless support structures on which they are co-located shall not be lighted or marked by artificial means,.
F. 
A wireless provider shall repair, at its sole cost and expense, any damages, including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to the Township's 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 or water systems and water and sewer lines directly resulting from any activities performed in connection with the installation and/or maintenance of a wireless facility in the ROW. The wireless provider shall restore such areas, structures, and systems to substantially the same condition in which they existed prior to the installation or maintenance that necessitated the repairs.
G. 
Small wireless facilities shall blend in with the surrounding environment or be otherwise concealed.
4. 
Undergrounding Provisions. To the maximum extent permitted by law, the applicant shall comply with requirements that prohibit communications service providers from installing structures in the ROW in areas designated solely for underground or buried cable and utility facilities where the Township has required all cable and utility facilities other than Township poles and attachments to be placed underground by a date certain that is three months prior to the submission of the application. The Director of Public Works may authorize the replacement of Township poles in the designated area upon good cause shown.
5. 
Waivers. A wireless provider may seek a waiver of the requirements of this section which may be granted by the Director of Public Works (or Board of Commissioners) upon good cause shown. Such waivers shall be granted in a nondiscriminatory manner.
[Ord. No. 2021-08, 10/21/2021]
For each small wireless facility or new utility pole with a small wireless facility subject hereto, wireless service providers shall pay to the Township an annual rate, as set by the Board of Commissioners by resolution, which shall not exceed the maximum allowable amount under the Small Wireless Facilities Deployment Act.[1]
[1]
Editor's Note: See 53 P.S. § 11704.1 et seq.
[Ord. No. 2021-08, 10/21/2021]
1. 
Maintenance or Improvements within the ROW. Within 90 days following written notice from the Township, the wireless provider shall, at its own expense, temporarily or permanently disconnect, remove, relocate, change, or alter the position of any small wireless facilities or utility pole for which it has a permit hereunder whenever the Township has determined that such removal, relocation, change or alteration is reasonably necessary for the construction, repair, maintenance, or installation of any Township improvement in or upon, or the operations of the Township in or upon, the ROW. In such cases, the Township shall work with the provider to allow for continuity of service and use of an alternative location as needed.
2. 
Emergency Removal or Relocation of Facilities. The Township retains the right to cut or move any small wireless facilities or utility poles located within the ROW, as the Township may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. If practical, the Township shall notify the wireless provider and provide it an opportunity to move its small wireless facilities or utility poles prior to cutting or removing the pole. Otherwise, the Township shall then notify the wireless provider after cutting or removing a small wireless facility or utility pole as soon as is practical under the circumstances.
3. 
Abandonment of Facilities. Unless the wireless provider communicates its intent to abandon a small wireless facility or utility pole sooner, a small wireless facility or utility pole subject hereto shall be deemed abandoned 180 days after it ceases to be used unless the wireless provider gives the Township reasonable evidence that it is diligently working to place the small wireless facility or utility pole back in service. The Township may require a wireless provider to remove any abandoned small wireless facility or utility pole. If the wireless provider fails to timely remove the abandoned small wireless facility or utility pole, then the Township may remove the small wireless facility or utility pole and recover from the wireless provider the actual cost of such removal.
4. 
Suspension or Revocation of Permit. Within 60 days of suspension or revocation of a permit due to noncompliance pursuant to § 21-604, Subsection 6, the applicant shall remove the small wireless facility and any associated equipment, including the utility pole and any support structures, if the applicant's wireless facilities and associated equipment are the only facilities on the utility pole. If the wireless provider is required to do so and fails to timely remove the abandoned small wireless facility or utility pole, then the Township may remove the small wireless facility or utility pole and recover from the wireless provider the actual cost of such removal.
5. 
Within 90 days of the expiration of any permit, the applicant shall remove the small wireless facility and/or utility pole. If the wireless provider fails to timely remove the abandoned small wireless facility and/or utility pole, then the Township may remove the small wireless facility and/or utility pole and recover from the wireless provider the actual cost of such removal.
[Ord. No. 2021-08, 10/21/2021]
A wireless service provider shall repair all damage to the right-of-way or any other land so disturbed directly caused by the activities of the wireless provider or the wireless provider's contractors and always return the right-of-way in as good of condition as it existed prior to any work being done. If the wireless provider fails to make the repairs required by the Township within 30 days after written notice, the Township may perform those repairs and charge the wireless provider the reasonable, documented cost of the repairs plus a penalty not to exceed $500. The Township may also suspend the ability of an applicant to receive a new permit from the Township until the applicant has paid the amount assessed for the repair costs and the assessed penalty or else deposited the amount assessed for the repair costs and the assessed penalty in escrow pending an adjudication of the merits of the dispute by a court of competent jurisdiction.