[Ord. No. 2021-03, 11/22/2021]
This Part shall be known and may be cited as "The Penn Township
Small Wireless Facilities and Use of Public Street Right-of-Way Ordinance."
[Ord. No. 2021-03, 11/22/2021]
The Board of Supervisors enacts this Part to govern use of public
street rights-of-way and municipal poles in accordance with and as
limited by Act 50 of 2021, The Small Wireless Facilities Deployment
Act. The Board of Supervisors recognizes the limitations of the Act
on its powers and desires to regulate the public street rights-of-way
and municipal poles to the maximum extent allowed by such Act. The
Board of Supervisors further desires to limit, to the extent legally
permissible, conflicts with other uses of the public street rights-of-way.
[Ord. No. 2021-03, 11/22/2021]
1. Word Usage. In interpreting this Part, the singular shall include
the plural, and the masculine shall include the feminine and the neuter.
2. Definitions. All words and phrases not otherwise defined herein shall
have the meanings set forth in § 2 of the Act.
ACT
The Small Wireless Facilities Deployment Act, the Act of
June 30, 2021, P.L. 232, No. 50, 53 P.S. § 11704.1 et seq.,
and as may be amended in the future.
ADA
The federal Americans with Disabilities Act, as amended,
and all regulations adopted to implement such statute.
FCC
The Federal Communications Commission or any agency successor
thereto.
ONE CALL
The Pennsylvania One Call Act, the Act of December 10, 1974,
P.L. 852, as amended, 73 P.S. § 176 et seq., and all regulations
adopted to implement such statute.
TOWNSHIP
The Township of Penn, Lancaster County, Pennsylvania.
UCC
The Pennsylvania Uniform Construction Code, as adopted and
administered by this Township.
[Ord. No. 2021-03, 11/22/2021]
1. All persons who desire to install a small wireless facility within
a right-of-way, whether by co-location or by the installation of a
new utility pole, shall file an application in writing for a permit
with the Code Enforcement Officer. In order to be considered a complete
application, such application must include all of the following:
A. A written application form identifying in detail the name of the
applicant and contact information for the applicant and the name and
contact information of the person who prepared the application and
whether the applicant proposes erection of a new utility pole or co-location
on an existing utility pole.
B. Precise location of all portions of the proposed small wireless facility,
including pole-mounted and ground-mounted small wireless facility
components.
C. Identity of the owner of the utility pole if the applicant proposes
co-location on an existing utility pole.
D. A report by a qualified engineering expert which shows that the small
wireless facility will comply with all applicable FCC regulations.
The report must identify the person who prepared the report and his
or her qualifications.
E. Construction drawings and supplemental information demonstrating
compliance with Section 3 of the Act, the UCC (including, as applicable, a complete UCC permit
application) and this Part.
F. Plan showing the proposed small wireless facility installation sealed
by a professional engineer, which shall contain a certification that
after installation of the facility any sidewalk, curb, or curb cuts
which may be impacted will comply with the ADA after installation
of the small wireless facility. The plan shall meet all of the following
requirements and include all of the following information:
(1)
Existing right-of-way width, sidewalk, curbing, and cartway
with sufficient information to demonstrate that the small wireless
facility will be located completely within the existing public street
right-of-way and will not interfere with the safe operation of traffic
control equipment, sight lines, or clear zones for vehicles or pedestrians.
(2)
Location of all stormwater management facilities within the
public street right-of-way, including swales, inlets, rain gardens,
and pipes, with sufficient information to demonstrate that the small
wireless facility will be located and installed in a manner that will
not interfere with existing stormwater management facilities.
(3)
Location of all utility facilities within the public street
right-of-way, including but not limited to public water and sewer
facilities, including all hydrants and manholes, with sufficient information
to demonstrate that the small wireless facility will be located and
installed in a manner that will not interfere with existing utility
facilities.
(4)
Location of any driveway, mailbox, or utility serving the abutting
property.
G. Where the application proposes co-location on an existing utility
pole which is not a municipal pole, written permission from the owner
of the existing utility pole.
H. Where the application proposes installation of a new utility pole,
a self-certification that the applicant has determined in good faith
that it cannot meet its service reliability and functional objectives
of the application by co-locating on an existing utility pole or municipal
pole. This self-certification shall include documentation of the basis
of the determination which shall identify all existing utility poles
and municipal poles in the vicinity and why they are not suitable.
I. Where a new pole or excavation for any reason is proposed, an application
for a street opening permit meeting all requirements of the Second
Class Township Code with street opening permit fee and evidence of
compliance with One Call.
J. The fee established by this Part.
[Ord. No. 2021-03, 11/22/2021]
All applications shall be submitted to the Township office on
a day that the Township office is open to the public and during hours
that the office is open to the public. Applications received within
one hour of close of business shall be considered filed on the next
day that the Township office is open for business.
[Ord. No. 2021-03, 11/22/2021]
1. The Code Enforcement Officer shall review the application for completion
within the time periods required by the Act and, if incomplete, shall
notify the applicant in accordance with the Act. The Code Enforcement
Officer shall review and act upon the application in accordance with
the Act.
A. If the application meets all requirements of the Act and this Part,
the Code Enforcement Officer shall issue a permit to authorize installation
of the small wireless facility and an invoice for the right-of-way
fee for the small wireless facility.
B. The proposed co-location, the modification or replacement of a utility
pole or the installation of a new utility pole with small wireless
facilities attached for which a permit is granted under this Part
shall be completed within one year of the permit issuance date.
C. Subject to the permit requirements and the wireless provider's
right to terminate at any time, the permit shall grant the wireless
provider authorization to operate and maintain small wireless facilities
and any associated equipment on the utility pole covered by the permit
for a period of five years, which shall be renewed for two additional
five-year periods if the permit holder is in compliance with the criteria
set forth in this Part and the Act and the permit holder has obtained
all necessary consent from the utility pole owner.
[Ord. No. 2021-03, 11/22/2021]
1. All small wireless facilities to be installed and maintained within
the right-of-way shall meet all of the following requirements:
A. The small wireless facility and all associated equipment shall meet
the size limits and height limits of the Act.
B. The small wireless facility shall be located so as not to cause any
physical or visual obstruction to pedestrian or vehicular traffic,
or to otherwise create safety hazards to pedestrians and/or motorists
or to otherwise inconvenience public use of the right-of-way. This
shall include, but not be limited to, any interference with compliance
with the ADA.
C. A new pole shall not be located within 10 feet of an existing driveway
or street intersection. A new pole shall not be located within any
stormwater management facility, including, but not limited to, any
swale or rain garden. A new pole shall not be located within 18 inches
of the face of the curb.
D. All equipment of the small wireless facility which is mounted on
a pole shall have a clearance of not less than 18 feet if located
over a cartway and not less than 10 feet if not located over a cartway.
E. Ground-mounted accessory equipment, walls, or landscaping shall not
be located within any stormwater management facility, including, but
not limited to, any swale or rain garden or within 18 inches of the
face of the curb.
F. New pole- or ground-mounted accessory equipment, walls or landscaping
shall not be located in an easement extending onto the lot adjoining
the right-of-way without the written permission of the easement holder.
G. Ground-mounted accessory equipment that cannot be placed underground
shall be screened, to the fullest extent possible, through the use
of landscaping or other decorative features. Any required electrical
meter cabinets shall the screened to blend in with the surrounding
area. Ground-mounted accessory equipment shall not interfere with
access to any driveway or mailbox.
H. All underground facilities shall be designed and installed in a manner
which will not require the removal or relocation of any stormwater
management facility or underground utility.
[Ord. No. 2021-03, 11/22/2021]
The wireless provider shall maintain the small wireless facility
in a manner that meets or exceeds all of the design standards of this
Part and all standards of the UCC. If the small wireless facility
is the only facility on a pole, the wireless provider shall maintain
the pole in accordance with this Part and all applicable requirements.
The wireless provider shall remove any graffiti on the small wireless
facility, including but not limited to ground-mounted accessory equipment,
within 30 days after notice from the Township to do so.
[Ord. No. 2021-03, 11/22/2021]
1. A wireless 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,
including installation of the small wireless facility or the failure
to properly maintain the small wireless facility, and return the right-of-way
in as good of condition as it existed prior to any work being done
in the right-of-way by the wireless provider or damage resulting from
the failure to maintain the small wireless facility. 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 of $500. The wireless provider who has
failed to make the required repairs shall not be eligible to receive
a new permit from the Township until the wireless provider has paid
the amount assessed for the repair costs and the assessed penalty
or 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.
2. A wireless provider shall fully indemnify and hold the Township and
its officers, employees and agents harmless against any claims, lawsuits,
judgments, costs, liens, expenses or fees or any other damages caused
by the act, error or omission of the wireless provider or its officers,
agents, employees, directors, contractors or subcontractors while
installing, repairing or maintaining small wireless facilities or
utility poles within the right-of-way.
[Ord. No. 2021-03, 11/22/2021]
1. In accordance with § 3(c) of the Act, the Township hereby imposes an annual fee for the use
of the right-of-way in the amount of $270 per small wireless facility
or $270 per new utility pole with a small wireless facility. The annual
fee shall become effective beginning on January 1, 2022, and shall
be imposed for each calendar year or portion thereof during which
a small wireless facility is located in a right-of-way. The owner
of each small wireless facility installed within the Township shall
be responsible to pay such right-of-way fee, whether or not such provider
receives an invoice from the Township. The fee will be due by January
31 of the calendar year for the calendar year to which the fee relates.
A. The failure to pay the annual right-of-way fee shall be a violation
of this Part and shall be subject to the penalties and remedies in
this Part.
B. If the annual right-of-way fee is not paid in full by January 31
of the calendar year, a penalty of 10% of the annual fee shall be
added. If the annual fee plus penalty is not paid in full by March
31 of the calendar year, interest at the rate of 1% per month shall
continue until the annual right-of-way fee, penalty, and interest
are paid in full.
C. The annual fee shall be adjusted upward by resolution of the Board
of Supervisors if authorized by § 7(c) of the Act.
D. The owner of each small wireless facility installed within a right-of-way
on the effective date of this Part shall provide the Township with
a report identifying each existing small wireless facility, identifying
the location of such small wireless facility, the dimensions of such
small wireless facility, and the date of installation of the small
wireless facility. This report shall include the name and contact
information for the owner of the small wireless facilities, including
the address to send invoices for the annual right-of-way fee and any
notices under this Part.
E. The owner of each small wireless facility shall provide the Township
with up-to-date contact information. If ownership of a small wireless
facility changes, the new owner of the small wireless facility shall
provide notice and new contact information to the Township within
30 days.
[Ord. No. 2021-03, 11/22/2021]
1. An applicant for a permit to install a small wireless facility shall
include the following fees with its application:
A. For an application seeking approval for between one and five co-located
small wireless facilities: $500.
B. For an application seeking approval of more than five co-located
small wireless facilities: $500 plus $100 for each co-located small
wireless facility beyond five.
C. For an application seeking approval of a small wireless facility
that requires the installation of a new or replacement utility pole:
$1,000.
D. The fees established by this section shall be adjusted upward by
resolution of the Board of Supervisors if authorized by § 7(c)
of the Act.
[Ord. No. 2021-03, 11/22/2021]
1. Within 60 days of suspension or revocation of a permit due to noncompliance
with this Part or the Act, the permit holder shall remove the small
wireless facility and any associated equipment, including the utility
pole and any support structures if the permit holder's wireless
facilities and associated equipment are the only facilities on the
utility pole, after receiving adequate notice and an opportunity to
cure any noncompliance.
2. Within 90 days of the end of a permit term or an extension of the
permit term, the permit holder shall remove the small wireless facility
and any associated equipment, including the utility pole and any support
structures if the permit holder's wireless facilities and associated
equipment are the only facilities on the utility pole.
3. A wireless provider which elects to discontinue the use of a small
wireless facility shall notify the Township in writing not less than
45 days prior to the discontinuance of use of the small wireless facility,
which notice shall specify when and how the wireless provider will
remove the small wireless facility and, if applicable, the pole. The
wireless provider shall complete the removal within 45 days of the
discontinuance of the use of the small wireless facility. A permit
issued under this Part for a small wireless facility which is voluntarily
removed shall expire upon the removal of the small wireless facility.
[Ord. No. 2021-03, 11/22/2021]
1. Violations. It shall be a violation of this Part to do or permit
the following:
A. To install a small wireless facility prior to obtaining the permit
required by this Part.
B. To install a small wireless facility in a manner other than that
authorized by the permit.
C. To place any false or misleading information on an application, including,
but not limited to, incorrectly identifying the right-of-way width,
the identity of the owner of a utility pole, the precise location
of the utility pole, or the size and location of any proposed or existing
equipment.
D. To fail to make any payment required by this Part or to make a payment
by a means which is later dishonored.
E. To violate any other provision of this Part.
2. Penalties. Any person who violates or permits the violation of any
provision of this Part shall be liable upon summary conviction therefor
to fines and penalties of not less than $100 nor more than $1,000
plus all costs of prosecution, including attorneys' fees, which
costs, fines, and penalties may be collected as provided by law. Each
day that a violation continues and each section of this Part which
is violated constitutes a separate violation.