[1]
Editor's Note: Former Subsections 15-1.1 through 15-1.18,
were repealed 7-27-2022 by Ord. No. 847-2022. Prior history includes:
2000 Code § 15:1-1 through § 15:1-4, 2000 Code
§ 15:2 through § 15:4; Ord. No.
608-2009, 2000 Code § 15:4-1, § 15:5-1,
§ 15:6 through § 15:8, § 15:9-1 through
§ 15:9-4, § 15:10, and § 15:11.
[2000 Code § 15:12]
Any person who shall build, construct or lay out any street
or avenue in the Borough shall first have their plans and specifications
approved by the Borough Council and the Borough Engineer. Such construction
shall be in accordance with this Code and all other applicable law.
This section shall not apply to any streets approved by the Planning
Board as part of any major subdivision application or otherwise.
[Added 7-27-2022 by Ord.
No. 847-2022]
Only public utilities licensed and regulated by the New Jersey
Board of Public Utilities are eligible to apply for a permit to open
any street or other area located in the right-of-way within the Borough
of Avalon. Any unregulated entity, such as a contractor performing
the actual work for or on behalf of the utility applicant, must be
a co-applicant for the permit.
[Added 7-27-2022 by Ord.
No. 847-2022]
A permit under this section shall not be required whenever any
excavation work takes place entirely on the property side of the curb
and provided that no excavation of the street is involved, including
any directional drilling or excavation under the street.
[Added 7-27-2022 by Ord.
No. 847-2022]
The Borough of Avalon and its third-party contractor(s) and
subcontractors are exempt from the fee provisions of this section,
except that the contractor and subcontractor shall be required to
file with the Borough the standard application form and as-built drawings
and comply with in all respects with the one-call requirements of
the New Jersey Board of Public Utilities. Insurance requirements shall
be as per contract with the Borough.
[Added 7-27-2022 by Ord.
No. 847-2022]
A permit will be issued for either minor work or major work.
A permit for major work has a separate fee structure and will require
an escrow. If a permit application is submitted for minor work and
the Director determines, either on his own initiative or in consultation
with the Borough Engineer, that the work contemplated is major work,
the applicant will be notified and required to submit the appropriate
fee and the required escrow. The time for the issuance of the permit
will be tolled until such time as the required fee and escrow is received
by the Borough.
[Added 7-27-2022 by Ord.
No. 847-2022]
The fee for a street opening permit shall be as follows:
a.
Minor work. A fee of $100 plus $75 for each individual excavation
or opening up to but not to exceed three excavations on a single block.
b.
Major work. A fee of $750 plus $75 for each individual excavation
or opening plus an escrow amount which shall be determined by the
Director of DPWU in consultation with the Borough Engineer, provided
that the minimum escrow shall be not less than $2,400.
Cross reference: See Subsection 15-1.33 herein.
c.
All fees and escrow deposits must be paid before the issuance of
any permit.
[Added 7-27-2022 by Ord.
No. 847-2022]
As used in this section, the following terms shall have the
meaning indicated:
The Borough of Avalon, its elected and appointed officials,
its agents, employees and volunteers and others working on behalf
of the Borough of Avalon. The certificate of insurance must name,
as additional insured, the Borough using the exact terminology set
forth in the definition. A certificate of insurance simply naming
the certificate holder is not sufficient and will be rejected.
The public utility applying for a permit under this section
and shall extend to and include applicant's agents, contractors,
and their respective employees.
A single street, or a section thereof, which is located between
two intersecting streets. For example, one block shall mean the area
on 40th Street between Dune Drive and Ocean Drive (aka "Third Avenue");
or the area on Dune Drive between 7th Street and 8th Street. "Block"
shall also mean the entire length of those streets known as 4th Avenue,
5th Avenue, Pelican Drive, Seagull Drive, Flamingo Drive, and Heron
Drive.
The Borough of Avalon, in the County of Cape May, and State
of New Jersey,
The Chief of the Avalon Police Department or his designee.
Can be either a complete or a partial closing and can result
from any activity that results in the blocking of traffic as a result
of road maintenance or repair, road construction activity or construction-related
activity at a construction site; or by excavation of the street or
tunneling under any street.
One that requires more than 50% of the street to be closed
for more than one hour and one in which no traffic may pass, in either
direction, for the duration of the closure. Dependent upon the particular
circumstances and the nature and extent of the work necessitating
the closure, local traffic may be permitted, that is, access to the
closed street if such access can be accomplished safely. Through traffic
shall not be permitted access. Such a closing may, under appropriate
circumstances, also require the removal of parked vehicles by owners,
including those parked both on and off-street.
Includes any construction activity that involves the excavation
or opening of any part of the street or public right-of-way associated
with the construction of any new building or structure or any appurtenant
building or structure or the addition to or improvement of any existing
building or structure.
Third Avenue which is also known as "Ocean Drive" and which
is designated as a primary street under this section. It shall also
encompass the definition of "street" as set forth in this section.
The Director of the Department of Public Works and Public
Utilities (DPWU) of the Borough of Avalon or his designee.
The Department of Public Works and Utilities of the Borough
of Avalon.
Any condition which poses an immediate threat to the health,
safety, or welfare of any person, persons or property and requiring
immediate or urgent intervention or repair. Examples include a rupture
of a sewer or water main or a gas main, or a gas leak likely to cause
an explosion or fire. It shall also include a medical emergency, fire,
or police emergency at any address on any affected street.
Any operation in which earth, rock, or other material in
the ground is moved, removed, or otherwise displaced by means of any
tools, equipment, or explosive, and includes, but is not limited to,
drilling, grading, boring, milling to a depth greater than six inches,
trenching, tunneling, scraping, tree and root removal, cable or pipe
plowing, fence post or pile driving, and wrecking, razing, rending,
or removing any structure or mass material, but does not include routine
residential property or right-of-way maintenance or landscaping activities
performed with nonmechanized equipment, excavation within the flexible
or rigid pavement box within the right-of-way, or the tilling of soil
for agricultural purposes to a depth of 18 inches or less. (Source:
N.J.S.A. 48:2-75)
Any person performing excavation or demolition and may include
a contractor having oversight for an excavation or demolition to be
performed by rented, operated equipment under the contractor's
on-site direction, provided the contractor contacts the One-Call Damage
Prevention System in the contractor's name, thereby assuming
responsibility and liability, to give notice of the intent to engage
in excavation or demolition work in that manner.
That traffic which may safely operate on the street or roadway
in order to access a dwelling or structure up to the point of road
closure and not beyond. As a general rule such traffic shall have
a destination of a structure located between the "road closed" warning
sign and the point of closure. (Definition: MUTCD sec. r11-3 and r11-4)
Four or more openings in any one block by the same utility
within 36 consecutive months. Once there have been four or more openings,
albeit under separate permits, then the fifth opening, and each subsequent
opening within 36 consecutive months shall be deemed major work even
though the application may be for less than the four openings.
Equipment powered by a motor, engine, or hydraulic, pneumatic,
or electrical device, including, but not limited to, trenchers, bulldozers,
power shovels, augers, backhoes, scrapers, drills, cable and pipe
plows, and other equipment used for plowing-in cable or pipe, but
does not include tools manipulated solely by human power. (Source:
N.J.S.A. 48:2-75, 3-9-2016)
The Manual of Uniform Traffic Control Devices.
Anything less than a complete closing and one which results
in a blockage or closing of a single lane of traffic and which causes
two-way traffic to utilize a single lane only.
The applicant for a permit under this section and the person
or entity to whom a permit is issued.
Shall have the meaning set forth in § 1-2 of this Code.
The following streets in the Borough:
First Avenue.
Dune Drive.
Third Avenue (Ocean Drive) (Avalon Avenue is intentionally omitted
as a primary street).
21st Street - west of Third Avenue (Ocean Drive).
24th Street West of Third Avenue (Ocean Drive), including the
2400 Block of Harbor Avenue and the 25th Street Bridge.
31st Street - 100 Block only.
42nd Street - west of Third Avenue (Ocean Drive).
8th Street east of Third Avenue (Ocean Drive) to Dune Drive
(emergency vehicle access to Inlet Drive, 7th Street, and access from
Dune Drive to Ocean Drive for mutual aid emergencies to Sea Isle City).
9th Street east of Dune Drive to the beach vehicle path.
15th Street east of Dune Drive to the beach vehicle path.
22nd Street east of Third Avenue (Ocean Drive) to Dune Drive
(200 Block) (emergency vehicle access to 21st Street Bridge from Dune
Drive and avoids Veteran's Plaza and the congested 21st Street
and Dune Drive intersection).
25th Street west and east of Third Avenue (Ocean Drive) to Dune
Drive (emergency access to 25th Street Bridge from Dune Dr.).
32nd Street east of Dune Drive to the beach vehicle path.
38th Street east of Dune Drive to the beach vehicle path.
60th Street east of Dune Drive to the beach vehicle path.
9th Street east of Dune Drive to the beach vehicle path.
All other streets which are not designated as "primary streets,"
including Avalon Avenue.
Any road, highway, public way, public alley, easement, or
other right-of-way accepted or maintained by the Borough as a public
street, as well as any state or county road or highway over which
the Borough has acquired jurisdiction by agreement.
See "excavation."
|
NOTE: *These definitions have meaning only insofar as work is
impacted by the MUTCD.
|
[Added 7-27-2022 by Ord.
No. 847-2022]
An application for a street-opening permit must be submitted
on forms provided by the Borough for such purpose. No application
will be considered unless deemed complete in all respects. To be deemed
complete, the application must be completed in full and be submitted
with the following:
a.
Fee.
b.
Escrow,
if required.
c.
An engineer's
drawing(s) showing the number and precise location of each proposed
excavation, including the designated block and lot(s) as appearing
on the Municipal Tax Map.
d.
A certificate
of liability insurance, for both the utility company and its designated
contractor, issued by an insurance company authorized to transact
business in the State of New Jersey and in such amounts as required
by the Borough and naming the Borough as an additional insured as
herein provided.
e.
An indemnification
and hold harmless agreement signed by an authorized officer of both
the utility company and its designated contractor.
f.
Either
the utility company and its designated contractor(s) may, with the
approval of the Borough, submit one hold harmless agreement which
shall cover any street opening permit that may be issued during the
calendar year. Such hold harmless agreement shall remain in full force
and effect for the maximum term permitted by law.
g.
The utility
company and its designated contractor(s) may, with the approval of
the Borough, execute one indemnity agreement with the required insurance
coverage to cover each street opening permit that may be issued during
the calendar year. The utility company and its contractor(s) shall
be responsible to defend any claim or claims by the Borough or any
third party alleging any loss or damage or injury arising out from
the work covered by the permit. Such indemnification shall remain
in effect for a minimum of two years following completion of the project
and acceptance by the Borough and shall cover any claim or claims
made within such time.
[Added 7-27-2022 by Ord.
No. 847-2022]
a.
Permits to open any street or area within the Borough right-of-way
will be issued by the Director of Public Works and Utilities (DPWU)
or his designee.
b.
Upon receipt of a complete application, it will be reviewed by the
Director who may consult with the Borough Engineer, Borough legal
counsel or other official prior to issuing a permit. The Director
may, in the exercise of his discretion, require the applicant and/or
applicant's contractor to supplement the application by the submission
of additional information.
c.
Permits will be issued or denied within 20 business days from when
the permit application is deemed complete unless the Director has
required that the application be supplemented as herein provided.
In such case the time for issuance shall be 20 business days from
the date of receipt of the supplemental information.
d.
No permit will be issued to open any street which is subject to moratorium
on street openings except in the case of a bona fide emergency and
following the procedures established in this section.
e.
The permit shall specify the date when work is to be completed which
time shall be of the essence. The permit may also designate certain
days or times when no work shall be undertaken. Generally, no street
openings shall occur from May 15 to September 15 of each year except
in the case of a bona fide emergency.
[Added 7-27-2022 by Ord.
No. 847-2022]
a.
A permit will be issued for either minor work or major work. A permit
for major work has a separate fee structure and will require an escrow.
If a permit is submitted for minor work and the Director determines,
either on his own initiative or in consultation with the Borough Engineer,
that the work contemplated is major work, the applicant will be notified
and required to submit the additional fee and the required escrow.
The time for the issuance of the permit will be tolled until such
time as the required fee and escrow is received by the Borough.
b.
Whenever the permit authorizes major work involving four or more
openings in any one block within 36 consecutive months, the applicant
may be required to perform a complete or partial resurface in accordance
with the provisions of Appendix B[1] hereof.
Cross reference: See Appendix B; Subsections 15-1.28; 15-1.42 and 15-1.43.
[1]
Editor's Note: Appendix B is included as an attachment to this chapter.
[Added 7-27-2022 by Ord.
No. 847-2022]
All infrastructure which is installed below any street shall
continue to be owned by the utility installing such infrastructure
from the source of supply to the location of the meter on the property
being serviced. Such utility shall remain responsible for all maintenance
and services of such infrastructure as herein indicated. This provision
shall exclude the Borough's water and sewer infrastructure (potable
water, sewer system and stormwater system) which is owned by the Borough
and maintained by the Borough or its designee. The property owner
shall be responsible for any repairs or maintenance required beginning
at the meter.
[Added 7-27-2022 by Ord.
No. 847-2022]
a.
No permit application will be accepted by the Borough unless such
application is accompanied by a certificate of insurance verifying
that that applicant and its contractor are insured against injury
to persons and damage to property caused by any act or omission of
the applicant, his agents, employees, contractors or subcontractors
done in the course of the work to be performed under the permit. The
insurance shall cover all hazards likely to arise in connection with
the work, including, but not limited to, collapse and explosion, and
shall also insure against liability arising from complete operations.
The limits of the policy of insurance shall be $2,000,000 combined
single limit for bodily injury, death, and property damage. Any such
policy or policies of insurance shall, in addition, conform to the
current minimum limits of coverage established or recommended by the
Atlantic County Municipal Joint Insurance Fund (ACMJIF) or any other
joint insurance fund of which the Borough is a member.
b.
In addition, any such policy or policies shall name the Borough of
Avalon and its elected and appointed officials, officers, and employees
as additional insured and comply with ACMJIF notice requirements concerning
cancellation, change in limits of coverage, nonrenewal and other requirements
as may from time to time be established by ACMJIF or its successors
or assigns. Certificate of Insurance shall be approved by the Borough
Solicitor.
c.
Separate certificates of insurance shall be required for the public
utility and each primary contractor with the additional insured requirement
included. Subcontractors working for the prime contractor must have
liability insurance with the required limits of coverage, and it shall
be the responsibility of the utility and the prime contractor to make
certain that such insurance is in effect, but the policy does not
have to name the Borough as an additional insured.
[1]
NOTE: Per Atlantic County Municipal Joint Insurance Fund (ACMJIF).
[Added 7-27-2022 by Ord.
No. 847-2022]
Every permit applicant, that is both utility company and its
contractor, and any subcontractor(s) shall be required to execute
a hold harmless agreement in favor of the Borough as follows:
|
"To the fullest extent permitted by law, the permit
applicant [contractor] agrees to defend, pay on behalf of, indemnify,
and hold harmless the Borough of Avalon, its elected and appointed
officials, its agents, employees and volunteers and others working
on behalf of the Borough of Avalon against any and all claims, demands,
suits, or loss, including all costs connected therewith, and for any
damages which may be asserted, claimed or recovered against or from
the Borough of Avalon, its elected and appointed officials, its agents,
employees, volunteers or others working on behalf of the Borough of
Avalon by reason of personal injury, including bodily injury or death
and/or property damage, including loss of use thereof, which arises
out of or is any way connected or associated with permit activity."
|
The foregoing hold harmless agreement shall be required in addition
to, and not in lieu of, the liability insurance requirements specified
herein and the required certificate of insurance naming the Borough
of Avalon and others (as specified herein) as additional insured.
[1]
NOTE: Per Atlantic County Municipal Joint Insurance Fund (ACMJIF).
[Added 7-27-2022 by Ord.
No. 847-2022]
Should the Borough determine that the proposed work is of such
a nature that a preconstruction meeting is required, then the applicant
shall be required to attend such a meeting and upon failure to do
so, the permit application will be denied. The time for issuance of
a permit shall be tolled from the time that a preconstruction meeting
is noticed to the applicant and the time when such meeting is actually
held.
[Added 7-27-2022 by Ord.
No. 847-2022]
Any public utility, and its designated contractor performing
any work pursuant to a permit issued under this section, shall comply
with the Manual of Uniform Traffic Control Devices (MUTCD) as adopted
by the State of New Jersey as follows:
a.
"Flaggers" (as defined in the MUTCD) shall be required for a partial
closing of any primary street(s) between May 15 and September 15 inclusive.
"Flaggers" shall utilize a "stop-and-go paddle," as those terms are
described in the MUTCD, to control the flow of two-way traffic into
a single lane of traffic. Such permit holder shall also comply with
the provisions of the MUTCD as appropriate for the particular closure.
Flaggers shall not be required on primary streets labeled as "beach
vehicle access," however it is expected that at least one lane of
travel shall be kept open on these primary streets for emergency vehicle
access to the beach. When circumstances make it impossible for one
lane to be kept open on these streets, the contractor shall notify
the Chief of Police, and clearly designate an alternate emergency
access route to the beach. (The reason for this is that after Labor
Day, the Avalon Beach Patrol no longer has a consistent presence on
the beach. Especially in the fall shoulder season, emergency services
respond to numerous rescue calls on the beach, thereby necessitating
the primary street designation for these important access points.)
b.
Flaggers may be required on such primary streets after September
15 and before May 15 when two-way traffic is reduced to a single lane
of traffic and if the Chief of Police, or his designee, in the exercise
of his judgment, determines that flaggers are required in the interest
of public safety and that it is unreasonable to expect that traffic
can be self-regulating. In addition to the use of flaggers, the permit
holder causing such excavation shall comply with the applicable provisions
of the MUTCD to the extent required or reasonably necessary.
c.
"Flaggers" (as defined in the MUTCD) may be required on the partial
closing of any secondary street(s) when such closing takes place between
May 15 and September 15 inclusive. Flaggers shall not be required
after October 1 or before May 15 on secondary street(s). The determination
shall be made by the Chief of Police, or his designee, in the exercise
of his judgment, based on considerations of whether the street involved
is one of low-volume traffic; the length of the street involved; and
whether users from both directions are able to see and observe the
traffic approaching from the opposite direction through and beyond
the worksite; and whether, all conditions considered, the movement
of traffic through a one-lane, two-way constriction may be self-regulating.
(See: MUTCD § 6C.10 01, 05.) Whether flaggers are required
or not, the permit holder shall comply with the applicable provisions
of the MUTCD to the extent required or reasonably necessary.
d.
Nothing contained herein shall be construed as relieving the permit
holder from the obligations and duty to comply with the provisions
of the MUTCD to the extent required or reasonably necessary and appropriate
under the totality of the circumstances.
e.
The complete or partial closing of any street, either primary and
secondary streets, shall require the posting of signage, barricades,
cones, or other safety warning devices as required by the MUTCD to
the extent required or reasonably necessary and appropriate under
the totality of the circumstances then in effect.
f.
All MUTCD compliance measures by the permit holder shall be approved
by the Chief of Police or his designee.
g.
Any street opening occurring between May 15 and September 15 shall
be limited to bona fide emergencies as defined herein and for no other
purpose.
[Added 7-27-2022 by Ord.
No. 847-2022]
Every permit shall be issued subject to certain standard general
terms and conditions which form a part of the permit. The violation
or disregard of such conditions shall be cause for the revocation
or suspension of the permit or the issuance of a stop-work order.
The standard general terms and conditions is available in the Department
of DPWU, the office of the Construction Official, or the Borough Clerk.
Those conditions may be amended and supplemented from time to time
with the approval of Borough Council pursuant to resolution duly adopted.
[Added 7-27-2022 by Ord.
No. 847-2022]
Only in the case of a bona fide emergency immediately impacting
public health or safety, or posing an immediate threat to life or
property, a utility and its contractor may open a street without adhering
to the application process as follows:
a.
The utility shall give immediate telephone or email notice to the
Director of DPWU of the nature of the emergency and the action being
undertaken. This shall be followed up by the filing of an appropriate
permit application within 48 hours following the occurrence of the
emergency. If necessary, the required engineer's drawing may
be submitted later to supplement the permit application but not later
than 10 business days after the emergency. The required fee, escrow
if applicable, and all other documents required as part of the permit
application shall be submitted to the Borough within the ten-business-day
requirement.
b.
If the emergency occurs after normal business hours of the DPWU,
including weekends and holidays, the required notice to the Director
shall be given not later than the first business day following the
emergency.
c.
No street openings shall occur between May 15 and September 15 except
for a bona fide emergency as defined in this section.
[Added 7-27-2022 by Ord.
No. 847-2022]
a.
No permit shall be issued for any street opening which would disturb
the pavement of any road having been constructed, reconstructed, or
overlaid until a period of five years after the completion of said
construction, reconstruction, or overlay, except in the event of an
emergency or hardship as described in this section.
Cross reference: See Subsection 15-1.40 hereof.
b.
Any person, firm or corporation violating any of the provisions of
the moratorium shall pay to the Borough an administrative penalty,
which shall be in addition to any other penalty prescribed by this
section, as follows:
1.
For the first opening in violation of the moratorium a penalty of
$2,000.
2.
For the second opening in violation of the moratorium a penalty of
$5,000.
3.
For the third and each subsequent opening in violation of the moratorium
a penalty of $10,000.
4.
The second or subsequent opening of a street subject to a moratorium
does not have to occur on the same street but will apply to any street
within the Borough which is under a moratorium.
5.
In addition to the foregoing monetary penalties, and in addition to all other penalties and requirements of this section, any party responsible for the opening of any street which is subject to a moratorium, even in the case of an emergency, shall be required to repave a portion of such street in accordance with Subsection 15-1.42 hereof.
c.
Nothing in this section shall be construed to relieve such person,
firm, or corporation from complying with all other requirements of
this section.
[Added 7-27-2022 by Ord.
No. 847-2022]
All permits issued under this section shall be subject to the
following rules and regulations:
a.
All excavations shall be kept properly barricaded at all times and
at the conclusion of the workday shall be backfilled or plated steel.
b.
During the hours of darkness, if the work area is restricted or not
open to regular vehicular or pedestrian traffic, then such work area
shall be provided with proper warning lights. This regulation shall
not excuse the permittee from taking any other precaution reasonably
necessary for the protection of persons or property.
c.
All work shall be done in such a manner as to cause a minimum of
interference with travel on the street affected.
d.
All refuse and material must be removed immediately at the conclusion
of the construction activity or at the conclusion of the event.
e.
All pavement shall be mechanically cut or milled for the full depth
through the existing subbase prior to excavation. The pavement shall
be saw cut six inches beyond the outer limits of the subgrade that
is to be disturbed. In general, trench widths shall be kept to a minimum.
The material excavated from the trench opening shall not be replaced
as backfill unless specifically permitted by the Director.
f.
All excavations shall be completely backfilled by the permittee,
and shall be compacted by mechanical tampers, hydro-tampers or high
speed vibro-tampers or other method approved by the Borough Engineer
as soon as practicable following trench backfilling. Where the Department
determines that the excavated material is unsuitable for backfill,
the permittee shall backfill the excavation with sand, dense graded
aggregate, or other suitable material which shall be placed in layers
not exceeding 12 inches in depth and thoroughly compacted in the manner
prescribed by the Department. Suitable backfill material shall be
placed to within 10 inches of the roadway surface to allow for a six-inch
compacted dense graded aggregate base course, a two-and-one-half-inch
hot-mix asphalt base course, and a one-and-one-half-inch hot-mix asphalt
surface course. Upon completion of the work, the permittee shall remove
any excess material and leave the premises in a clean condition. If
the Department determines that any backfilled excavation has settled
or caved in, it shall so notify the permittee, who shall promptly
continue backfilling until the Department determines that settlement
is complete.
g.
If tunneling operations are required, the tunnel shall be backfilled
with bentonite, or other suitable material approved by the Borough
Engineer.
h.
If the work is not performed in accordance with the regulations set
forth in this subsection and any other regulations that may be established
by the Department, then the Department may complete the work itself
and restore the surface of the street. Prior to undertaking and commencing
any such remedial work, the Department shall first notify the surety,
if any, and the permit holder of the deficiencies and the Borough's
proposed action to correct the deficiencies and that the cost of such
remedial action will be charged against the bond, if any, or charged
to the permittee and deducted from any deposit or recovered in an
action filed in a court of competent jurisdiction.
[1]
Editor's Note: Appendix B is included as an attachment to this chapter.
[Added 7-27-2022 by Ord.
No. 847-2022]
The permittee shall be required, in all circumstances to restore
the surface of the street in accordance with specifications of the
Borough Engineer and in accordance with the following:
a.
The specification for the restoration of the street appears in Appendix
B[1] of this chapter. Those specifications may be modified
by the Borough Engineer when the unique circumstances of a particular
restoration require.
[1]
Editor's Note: Appendix B is included as an attachment to this chapter.
b.
Whenever the restoration must be made under emergent or unusual circumstances,
the Borough Engineer is authorized to impose additional standards
in addition to or in place of those appearing in Appendix B. Whenever
such circumstances exist, the restoration shall be subject to inspection
by and approval of the Borough Engineer. Under such circumstances
the applicant shall be required to deposit an escrow payment to be
used to defray Borough expense incurred in such engineering expense
even when the permit is for minor work only. Whenever the opening
involves a street subject to moratorium, and in violation of such
moratorium, whether or not the opening is due to an emergency as defined
in this section, the party responsible for the opening, in addition
to any other penalty or requirement imposed by this section, shall
mill and pave 100 feet of new paving as determined by the Borough
Engineer.
[2]
Editor's Note: Appendix B is included as an attachment to this chapter.
[Added 7-27-2022 by Ord.
No. 847-2022]
This section shall be enforced by any of the following:
[Added 7-27-2022 by Ord.
No. 847-2022]
The Director may revoke a permit for any of the following reasons:
a.
Violation of any provision of this section or any other applicable
rules, regulations, law, or ordinance.
b.
Violation of any condition of the permit issued.
c.
Carrying on work under the permit in a manner which endangers life
or property, or which creates any condition which is unhealthy, unsanitary,
or declared by any provision of this Code to constitute a nuisance.
d.
The procedure for revoking a permit shall be the same as that set
forth in the Code for the revocation of licenses, except that the
initial hearing shall be before the Director with a right of appeal
to the Borough Business Administrator or his designee, and the Director
may provide, in his decision, that the revocation shall not become
effective if the permittee corrects the violation within a specified
period of time.
[Added 7-27-2022 by Ord.
No. 847-2022]
a.
A stop-work order may be issued in any of the following situations:
2.
By the Director of DPWU or his designee and/or the Code Enforcement
Official:
(a)
For failure to obtain a construction permit or a DPWU permit;
(b)
For a violation of the terms and conditions of the DPWU permit;
(c)
For failure to comply with the provisions of this section and
the subsections hereof;
(d)
For conduct or creating or maintaining conditions resulting
in a public nuisance or which poses a health or safety hazard;
(e)
For failure to maintain the construction site in such a manner
as to comply with this section;
(f)
For any other reason permitted by law.
b.
The stop-work order shall remain in effect until rescinded by the
issuing authority upon correction or remedy of the underlying conditions
giving rise to the issuance of such stop-work order.
c.
Failure to obey the stop-work order shall subject the contractor
to the penalty provisions of this section.
[Added 7-27-2022 by Ord.
No. 847-2022]
a.
Any person violating this section shall be subject to one of more
of the following:
1.
An administrative penalty of up to $200 per day for each day that
the permit holder is in violation of any requirement under this section
for such time as the violation remains unabated; and/or
2.
Any administrative penalty imposed under the Uniform Construction
Code or any other law or regulation of the state of New Jersey; and/or
3.
Upon the filing of a complaint with the Municipal Court or other
court of competent jurisdiction, and upon conviction, such penalty
as such court may impose.
4.
The foregoing penalties are cumulative and not exclusive. Such penalties
may, in appropriate cases, also be imposed in addition to a permit
revocation or stop-work order.
b.
Each day that a violation continues shall be treated as a separate
violation.
c.
Such penalties shall be recovered by the Borough through a penalty
enforcement action in accordance with N.J.S.A. 2A:58-11 and N.J.S.A.
52:27D-138 or by a charge against any escrow deposit.
d.
Any administrative penalty imposed under this subsection shall be
in addition to, and not in place of, any other penalty established
in this section or by this Code.
[Added 7-27-2022 by Ord.
No. 847-2022]
Any person violating any of the provisions of this section, except for violations of the moratorium provisions specified in Subsection 15-1.41, shall, upon conviction, be subject to one or more of the following:
[Added 7-27-2022 by Ord.
No. 847-2022]
a.
Any person convicted of violating this section within one year of
the date of a previous violation, and who was fined for the previous
violation, shall be sentenced by the court to an additional fine as
a repeat offender. The additional fine imposed by the court upon a
person for a repeated offense shall not be less than the minimum or
exceed the maximum fine fixed for a violation of the ordinance but
shall be calculated separately from the fine imposed for the violation
of the ordinance. (See N.J.S.A. 40:49-5)
b.
The penalty for violations imposed under this section shall be in
addition to, and not in place of, any administrative penalty imposed
by this section.
[Added 7-27-2022 by Ord.
No. 847-2022]
The Director of DPWU, in consultation with the Borough Engineer
and Borough Administration, is hereby authorized to adopt reasonable
rules and regulations for the efficient enforcement of this section.
Such rules and regulations shall be writing and shall be filed with
the Borough Clerk who shall inform Borough Council thereof. Such rules
and regulations shall have the force of law unless the same are modified
or rescinded by resolution of Borough Council.
[2000 Code § 16:4]
a.
Every street which is constructed or reconstructed in the Borough
shall be provided with curbs and all necessary incidental structures
and appurtenances.
b.
The property owner adjoining or abutting the streets shall install
curbs and all necessary incidental structures and appurtenances on
the request of the Borough Business Administrator, after a thirty
(30) day notice pursuant to N.J.S.A. 40:65-1 et seq.
c.
Upon the failure of such property owners to install such curbs and
all necessary incidental structures and appurtenances at the request
of the Borough Administrator, the Borough shall install the curbs
and all necessary incidental structures and appurtenances and assess
the property owners for the cost thereof.
d.
The required dimensions and proper heights and grades of the curbs
and all necessary incidental structures and appurtenances must be
obtained from the Borough Engineer.
[2000 Code § 16:4-1; New]
Before any construction work is undertaken a permit must be
obtained from the Construction Official, who is hereby authorized
to issue the same upon:
a.
Receipt of a fee in the amount of thirty-five ($35.00) dollars as
established by Borough ordinance; and
b.
The applicant has filed with the Construction Official a plan of
construction and has obtained the required lines and grades from the
Borough Engineer or has given the Construction Official satisfactory
assurance that the lines and grades will be obtained and followed;
and
c.
The contractor has deposited with the Borough the sum of one thousand
($1,000.00) dollars, which shall be placed into an escrow account
and returned to the contractor after completion of the work and inspection
by the Construction Official, less any sums necessary to repair or
complete the work to the specifications of the Borough Engineer, and
to repair the street if damaged by the work.
[2000 Code § 16:4-2]
All sidewalks, curbs and driveways, including repairs, replacement
and reconstruction thereof, shall be constructed to the strict line
and grade as established by the Borough Engineer and of the materials
as specified by this section.
[2000 Code § 16:4-2.1]
a.
Concrete curbs shall be sixteen (16) inches in depth, having a top
width of six (6) inches and a bottom width of eight (8) inches. The
top and face shall be troweled to produce a smooth finish. The face
shall be troweled to a depth of nine (9) inches. Mechanical vibration
of the concrete will be permitted to produce a smooth curb face. Where
vibrating produces the desired uniform smooth surface, troweling will
not be required.
b.
Expansion joints shall be provided at twenty (20) foot intervals
along the curb and shall consist of one-half (1/2) premolded compressible
material.
[2000 Code § 16:4-2.2]
a.
Concrete sidewalks shall be four (4) inches in depth, having a width
of four (4) or five (5) feet, which shall be determined by the width
of existing sidewalk on any particular street. The sidewalk shall
be finished with a wooden float to provide a uniform surface.
b.
Grooves shall be formed at intervals, equal to the width of the sidewalk
and expansion joints provided at twenty (20) foot intervals and shall
consist of one-half (1/2) inch premolded compressible material.
c.
Sidewalks shall be located within the sidewalk area in accordance
with the established practice on any particular street and shall slope
upward from the established curb grade toward the property line at
the rate of one-quarter (1/4) inch per foot.
[2000 Code § 16:4-2.3]
The following shall govern the type of materials to be used:
Mix: Concrete shall consist of one (1) part Portland cement,
two (2) parts of sand, and four (4) parts of course aggregate using
only sufficient water to make a workable mix.
Cement: Cement shall be approved Portland cement.
Sand: Sand shall be clean washed concrete sand.
Course Aggregate: The course aggregate shall be five-eighths
(5/8) inch or three-fourths (3/4") inch broken stone or washed gravel,
and shall be in practical compliance with the requirements for five-eighths
(5/8) inch or three-fourths (3/4) inch as indicated in Table 10, page
131, of the "New Jersey State Highway Department Standard Specifications
for Road and Bridge Construction," 1941 edition.
[2000 Code § 16:4-3]
a.
Whenever any existing sidewalk, curb or driveway, or any part or
parts thereof, shall be located in the street or sidewalk area, and
the same is in such condition that it has become dangerous to the
public or is in such condition that it should be replaced, reconstructed,
or repaired, or does not conform to the provisions of this chapter,
the Construction Official is authorized to give notice to the property
owner to replace, repair or reconstruct the same within thirty (30)
days from the service of such notice.
b.
Whenever any lot, tract or parcel of land is located in an area where
public convenience and necessity require the construction of a curb
or sidewalk, or both, the Construction Official is hereby authorized
and empowered to give notice to the property owner to cause the same
to be constructed within thirty (30) days from the service of the
notice.
c.
Such areas are intended to mean those where the general public would
be likely to pass or repass with reasonable frequency; those located
where the lands abutting have improvements erected thereon and lands
located in a vicinity which has been developed by the construction
of improvements on other lands.
d.
Whenever a notice is required by this section to be given by the
Construction Official, such notice shall be in writing. Service of
the notice shall be by personal service upon the owner if the owner
is domiciled in Avalon, or by service at the owner's place of abode
upon any member of the owner's family who has attained fifteen (15)
years of age. Service upon an owner who cannot be served as above
set forth shall be deemed sufficient if mailed, registered mail, with
postage prepaid, to the owner by name and at the address as disclosed
by the tax books according to the latest official record of the Tax
Collector.
[2000 Code § 16:4-4]
Whenever directed to act by the Mayor or Business Administrator
in specific instances, the Construction Official shall utilize the
provisions of N.J.S.A. 40:65-2, by giving notice to the owner that
unless the owner completes the work within thirty (30) days after
service of the notice, the Borough will make the improvement at the
sole expense of the owner. The cost of the work shall be assessed
against the lands of the owner in the manner prescribed by law. All
applicable provisions of N.J.S.A. 40:65-1 et seq., shall be followed.
[2000 Code § 16:4-5]
The Construction Official is hereby empowered to enforce this
section and several provisions thereof. The Construction Official
is hereby further empowered to enforce the discretionary powers which
are considered necessary in order to make the provisions hereof properly
effective. In the event of an injustice, the possible abuse of discretion
and to correct the possibility of error in judgment, any owner who
receives a notice from the Construction Official has the right to
appeal to the Mayor and Council by filing a notice of appeal with
the Borough Clerk within the thirty (30) day period heretofore mentioned.
Upon receipt of any such notice of appeal, the Mayor and Council will
hear the appeal at its next regular meeting, at which time the owner
and any other persons appearing in the matter will be heard or afforded
the opportunity to be heard. After the hearing, the Mayor and Council
will consider the matter, reach a decision and notify the owner thereof.
[2000 Code § 16:4-6.1]
It shall be unlawful for any person to construct or remove or
cause to be constructed or removed any sidewalk, driveway apron, curb
or gutter or any part thereof within any public right-of-way in the
Borough without first having obtained a permit to do so from the Construction
Official.
[2000 Code § 16:4-6.2]
Application for a permit under this section shall be made to
the Construction Official by the owner of the premises or his agent
upon forms provided by the Borough and shall contain the following
information:
a.
The name and address of the applicant.
b.
The name and address of the person who is to perform the proposed
work, and the name and address of the owner of the property on which
the work is to be performed, if other than the applicant.
c.
The location, by street number or otherwise, of the premises where
the work is to be done.
d.
The estimated cost of the proposed work.
e.
A line and grade plan showing the proposed work, including its exact
location with respect to a street intersection or some other fixed
and prominent object, as well as its width and relationship to the
grade of the street and the adjacent property and in the case of a
driveway apron, its slope or pitch.
f.
Any other information that the Construction Official deems necessary
in order to determine whether the work will comply with this chapter.
[2000 Code § 16:4-6.3]
A fee as established by Borough ordinance or resolution shall
be charged for each permit.
[2000 Code § 16:4-6.4]
a.
All materials and work shall be in accordance with Borough specifications
on file in the Construction Office.
b.
Any sidewalk, driveway apron, curb or gutter which is removed shall
be promptly replaced in accordance with Borough specifications.
c.
No concrete sidewalk shall be replaced or covered with blacktop.
d.
Whenever a "curb cut" or driveway depression is required, the entire
section or sections of curb or curb and gutter shall be removed and
replaced. The breaking and recapping of curbing is specifically prohibited.
[2000 Code § 16:4-6.5]
The applicant shall notify the Construction Office at least
twenty-four (24) hours prior to the time of pouring or laying any
sidewalk, driveway apron, curb or gutter, so that the Department may
arrange for adequate inspection and testing.
[2000 Code § 16:4-6.6]
This section shall not apply to:
[Added 12-16-2020 by Ord. No. 813-2020]
Borough Council finds, determines and acknowledges the following:
a.
It is necessary and appropriate to supplement and/or amend the Avalon
Borough Code to address issues associated with the deployment of wireless
communications facilities in the public rights-of-way.
b.
It acknowledges that wireless communications carriers may enter into
written agreements with parties that have the lawful right to erect
poles in the public rights-of-way pursuant to N.J.S.A. 48:3-18, and
that the consent of the municipality is required pursuant to N.J.S.A.
48:3-19, if the party seeking to install such facilities does not
have an independent lawful right to construct such facilities.
c.
There exists a present need to provide for the deployment of small
wireless facilities throughout the Borough.
d.
The Borough Council of the Borough of Avalon deems it necessary and
appropriate to supplement and/or amend the Borough Code to address
issues associated with the deployment of wireless communications facilities
in the public rights-of-way; and
e.
It is in the public interest to encourage the prompt deployment of
communications facilities in order to improve the efficiency and capacity
of communications networks that serve the public.
f.
The purpose of this section is to allow the prompt deployment of
wireless communications facilities in the public rights-of-way while
also effectively managing the rights-of-way in the interests of the
public health, safety and welfare, through the use of co-location
and multicarrier wireless facilities which minimize the number of
wireless facilities throughout the Borough.
g.
The Borough acknowledges that in connection with the use of those
public rights-of-way under the jurisdiction of the County of Cape
May, municipal consent is required in addition to the consent of the
county pursuant to N.J.S.A. 27:16-6; and
h.
The Borough acknowledges that notwithstanding the proscriptions of
47 U.S.C. § 253(a), it has the authority to manage the public
rights-of-way as provided in 47 U.S.C. § 253(c).
a.
For the purposes of this section, the following terms, phrases, words,
and their derivatives shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include
the future, words in the plural include the singular, and words in
the singular include the plural. Any term not defined in this section
shall have the meaning ascribed to it in the New Jersey Municipal
Land Use Law, N.J.S.A. 40:55D-1 et seq., unless the context clearly
requires otherwise. In the event that a term is not defined by this
section, said term shall have its common and/ordinary meaning.
b.
APPLICANT
BOROUGH
CARRIER
CO-LOCATION
COMPETITIVE LOCAL EXCHANGE CARRIERS (CLECs)
1.
2.
3.
CONDUIT
CONSTRUCTION PERMIT
COUNTY
DAY or DAYS
FACILITY or FACILITIES
GOVERNING BODY
MUNICIPALITY
PERMITTEE
PERSONAL WIRELESS SERVICE FACILITIES
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
REVIEW COMMITTEE OF THE BOROUGH or SITE COMMITTEE
STEALTH STRUCTURE
1.
2.
STREET
THIRD-PARTY OPERATOR
UTILITY POLE
ZONING OFFICER
ZONING PERMIT
Definitions:
The entity seeking a Borough permit to construct or install
a wireless facility or facilities in the Borough right-of-way. "Applicant"
shall include a carrier, a competitive local exchange carrier (CLEC)
or other third-party operator as herein defined. The applicant shall
notify its contractors and subcontractors of the requirements of this
section and shall be responsible for any violations of this section
by any of its contractors. "Applicant" shall include the term "permittee"
when required permits have been issued pursuant to this section.
The Borough of Avalon, in the County of Cape May, State of
New Jersey.
Any firm, partnership, association, corporation, limited
liability company, or any other legally recognized organization, licensed
by the Federal Communications Commission to provide personal wireless
services or authorized by the New Jersey Board of Public utilities
to provide telecommunications services in the State of New Jersey.
The shared use of wireless facilities by more than one wireless
carrier.
A phone company authorized by the new jersey board of public
utilities (sometimes referred to as "NJBPU") to provide telecommunications
services in direct competition with the incumbent local exchange carriers
(ILECs) and other CLECs using its own wires and facilities or through
wholesale sharing arrangements with other providers. This does not
include wireless carriers. [SOURCE: NJBPU-FAQ]
As an approved CLEC, the carrier receives certain rights and
privileges related to access to rights-of-way, poles and conduits
to place its wires and facilities used only in the provision of landline
telecommunications services.
If CLECs are providing wireless services, which are not within
the Board's jurisdiction, the CLEC must follow federal and local municipal
zoning rules to gain access to rights-of-way, poles and conduits to
provide its wireless services.
If an approved CLEC also provides wireless services or wireless
capacity to a wireless provider, it must obtain local zoning approval
and permits from the municipality.
A casing or encasement for wires or cables.
That permit issued by the Construction Official of the Borough
of Avalon in accordance with the Uniform Construction Code of New
Jersey to permit construction or installation of telecommunications
equipment pursuant to this section. (A zoning permit is a required
prior approval necessary for the issuance of a construction permit.)
The County of Cape May, State of New Jersey.
Calendar days unless the text should indicate business days.
Calendar days include Saturday, Sunday, and legal holidays. Business
days shall exclude Saturday, Sunday, and legal holidays.
All structures, devices, equipment and materials, including
but not limited to: antennas, radios and radio cabinets, electrical
wires and cables, fiber optic cables, communications and video cables
and wires, poles, conduits, pads, backup power supply and other components
of personal wireless service facilities, and appurtenances thereto,
located in the public rights-of-way. Each pole mounting set up shall
be a separate facility for regulatory purposes, applications, and
fees.
The Borough Council of the Borough of Avalon in the County
of Cape May, State of New Jersey.
The Borough of Avalon, County of Cape May, State of New Jersey.
The entity to which a permit has been issued pursuant this
section and master license agreement for use of public rights-of-way.
This term shall also mean any contractor or subcontractor doing any
work for the carrier.
Equipment at a fixed location that enables personal wireless
service between user equipment and a communications network, including
but not limited to: a) equipment associated with personal wireless
services such as private, broadcast and public safety services, as
well as unlicensed wireless services and fixed wireless services;
and b) tower, radio transceivers, antennas, coaxial or fiber-optic
cable, regular and backup power supplies and comparable equipment,
regardless of technological configuration.
Any technologies defined in 47 U.S.C. § 332(c)(7)
including commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services, provided to
personal mobile communication devices through wireless facilities
or any fixed mobile wireless services provided using personal wireless
facilities.
The surface, the air space above the surface, and the area
below the surface of any street, road, highway, lane, alley, boulevard,
or drive, including the sidewalk, shoulder and area for utilities
owned or controlled by the Borough of Avalon or the County of Cape
May or within an easement to the public or other easement owned or
controlled by the Borough of Avalon or the County of Cape May.
That Committee established pursuant to § 15-4.17.
A new structure for the mounting of facilities, such as a light
pole with integrated antenna, with aesthetics found to be reasonably
acceptable to the Site Review Committee. Such a structure shall only
be permissible when it is conclusively demonstrated that existing
facilities in the area are not adequate or sufficient and that there
is no practical or feasible alternative to the construction of a stealth
structure. However, even if the applicant conclusively demonstrates
that existing facilities in the area are not adequate or sufficient
and that there is no practical or feasible alternative to the construction
of a stealth structure, the application may be denied if the Borough
determines that the location of the proposed stealth structure is
not appropriate under all of the applicable facts and circumstances
or otherwise fails to meet the requirements of this section. If the
application is denied, the applicant shall be entitled to appeal as
herein provided.
|
Cross Reference: See Section 15-4.17 (Appeals); 15-4.8 (Deviations); 15-4.3(e) (master license agreement); 15-4.5 (Conditions and Requirements)
|
By "reasonably acceptable" is meant that the proposed facility
or facilities must, to the greatest extent possible, duplicate other
structures such as utility poles in the immediate vicinity [e.g.,
similar size, color, height, design] and shall otherwise meet all
the standards established by this section.
Any street, avenue, boulevard, road, parkway, viaduct, drive
or other way as defined in the Municipal Land Use Law, N.J.S.A. 40:55D-7.
An applicant or permittee that is not specifically a licensed
wireless carrier or CLEC that will build, operate and maintain wireless
facilities for the provision of service of one or more wireless carriers.
A tall wooden pole that is used to support telephone wires,
electrical wires, etc.
The Zoning Officer of the Borough of Avalon or his/her authorized
designee, including the Assistant Zoning Officer.
The document signed by the Zoning Officer pursuant to N.J.S.A.
40:55D-18 that is required as a condition precedent to the installation
of an individual facility and which acknowledges that the facility
complies with the provisions of this section, or approved deviation
therefrom.
a.
Use of Existing Poles.
1.
A carrier seeking to use the Borough rights-of-way for the installation
of facilities as defined by this section must first execute the master
license agreement approved by the Borough Council.
2.
Prior to the execution of the master license agreement, the carrier
shall provide to the Borough a complete list or inventory of existing
poles within the Borough that the carrier will or may use for the
installation of facilities. Such inventory shall be physically viewed
and inspected by the Borough within 30 calendar days of receipt and
the carrier shall be notified as to whether the designated poles are
satisfactory. If any are rejected, the Borough shall notify the carrier
of the pole or poles rejected and the reasons for rejection. Once
the final list is agreed upon by the carrier and the Borough Administration,
the list shall be submitted to Borough Council for approval by resolution.
Once approved, such approval shall be good for five years from the
date of approval. During such five-year approval period the carrier
may, at any time, make use of any of the pre-approved poles by filing
an application for a permit with the Borough Zoning Officer with a
copy of the notice to both the Borough Clerk and Business Administrator.
The Zoning Officer shall issue a zoning permit with the necessary
construction permit to follow in due course.
3.
No pole or poles shall be used unless a zoning permit and construction
permit is issued as provided herein.
4.
A zoning permit and construction permit may cover multiple installations
in multiple locations provided the specific locations are designed
in the permit application.
b.
Use of New or Replacement Poles.
1.
When a carrier concludes that an existing pole or poles cannot be
utilized or is unsuitable for the installation of facilities under
this section, the carrier may propose the use of a replacement pole
or the installation of an additional pole within the right-of-way.
The carrier shall submit a preliminary request to the Zoning Officer
with copies to both the Borough Clerk and Borough Administrator. Such
preliminary request shall contain the exact location of the existing
or proposed pole; whether it is a proposed replacement of an existing
pole or an additional pole; if an additional pole a description of
the proposed installation and type of pole to be utilized; and such
additional information as the Borough may require. This subsection
applies to any proposal to install/construct a stealth structure as
those terms are defined herein. A new pole or installation will only
be approved when a carrier establishes by conclusive evidence that
existing facilities are either unusable or unsuitable under the existing
circumstances.
2.
Upon receipt of a complete applications, and after such supplementation as the Borough may require, the application will be reviewed by the Borough which may include a review by the Site Committee established under this section and within such times as specified in § 15-4.6 (Action on Zoning Permits and Applications).
3.
If the carrier agrees with the preliminary determination, the site
inventory of poles will be updated and the matter submitted to Borough
Council for approval and, upon approval, the zoning permit and construction
permit may issue.
a.
Permit Required. No carrier, without first filing an application
and obtaining a zoning permit from the Borough Zoning Officer pursuant
to N.J.S.A. 40:55D-18, shall construct any facility within any public
right-of-way.
b.
Application Requirements. The application shall contain, at a minimum,
the following:
1.
The carrier's name and address and telephone number of the contact
person for such carrier;
2.
The applicant's name and address, if different than the carrier,
and telephone number of the contact person for such applicant;
3.
The names, addresses, telephone number of the professional consultants,
if any, advising the applicant with respect to the application;
4.
A brief description of the proposed work;
5.
A plan with specifications of the facility showing the work proposed,
including sufficient information regarding the components of the facility,
including their types and quantities;
6.
Any request for a deviation from one or more provisions of this section;
and
7.
Such additional information as may be reasonably required by the
Borough Zoning Officer.
c.
Application Fees. All applications for zoning permit pursuant to
this section shall be accompanied by a fee and escrow deposit as set
forth in Appendix A of this section.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
d.
Recurring Fees. Annual recurring fees shall be payable as set forth
in Appendix A.
a.
Installation of Facilities. It shall be lawful for wireless communication
carriers to install facilities in the public rights-of-way on existing
wooden poles only, and such carriers shall comply with all requirements
of this section and the terms and conditions of the master license
agreement. All applicants shall obtain any and all approvals necessary
from the owner and/or operator of the wooden utility poles to be used;
b.
Other Approvals. All applicants shall obtain any and all approvals
necessary from any other governmental agency in addition to the owner
and/or operator of the wooden utility poles to be used;
c.
Height. No antenna or attachment to an existing wooden utility pole
shall exceed the height of that pole by more than five feet;
d.
New Poles. No new poles shall be erected for the purpose of placing facilities regulated herein. The setting of utility poles is regulated by the new Jersey Board of Public Utilities (BPU), the Borough authorizes only the utility company to set utility poles in the public rights-of-way in their normal course as they deem appropriate and/or necessary subject to BPU regulation. Any proposed new pole shall follow the procedure specified in § 15-4.3b et seq. A new pole will be authorized only when a carrier conclusively demonstrates that existing poles or facilities are unsuitable or unusable;
e.
Pole-Mounted Equipment. Equipment shall be pole mounted at a minimum
of eight feet from the ground and/or shall conform to all Flood Prevention
Ordinance[1] requirements of the Borough including but not limited
to base flood plus elevations required, whichever is higher in height,
and the facility is mounted on a structure 50 feet or less in height,
including the antenna or is mounted on a structure no more than 10%
taller than other adjacent structures or does not extend existing
structures on which they are located to a height of more than 50 feet
or by more than 10%, whichever is greater; each antenna associated
with the deployment, excluding associated antenna equipment, is no
more than three cubic feet in volume; all other wireless equipment
associated with the structure, including wireless equipment associated
with the antenna and any pre-existing associated equipment on the
structure, is no more than 28 cubic feet in volume;
f.
Ground-Mounted Equipment. No ground-mounted equipment is permitted
on or around any pole;
g.
Color and Conduit. All antennas, conduit and equipment shall be a
color that blends with the wooden utility pole on which it is mounted.
Any cables or wiring attached to the utility pole shall be covered
with an appropriate conduit;
h.
Construction Permits. Subsequent to the issuance of the zoning permit,
the permittee shall obtain any necessary permits required pursuant
to the current Uniform Construction Code adopted in New Jersey prior
to installation;
i.
Underground Work. All underground work shall follow standard road
opening permit requirements; and
j.
Co-locate. All carriers shall co-locate and cooperate with each other
to minimize the impact and number of facilities on and in the public
rights-of-way.
The Zoning Officer shall approve or reject the permit application
within 10 business days, unless the applicant consents, in writing,
to an extension of time beyond the 10 days. If the application is
rejected, the reason for such rejection shall be stated in writing.
If the Zoning Officer determines that the permit application is incomplete
and insufficient to enable the Zoning Officer to either approve or
reject the application then, in such case, the Zoning Officer shall
inform the applicant in writing what information is missing and this
shall be deemed a denial of the application. If the application does
not conform to the requirements of this section and no request for
a deviation is made with the application, the Zoning Officer shall
reject such application in writing, stating the reasons therein. If
the Zoning Officer is satisfied that the application conforms to the
requirements of this section, the Zoning Officer shall issue a permit
therefor as follows:
A zoning permit from the Zoning Officer shall confirm compliance
with this section and shall authorize the permittee to apply for construction
permits to undertake the work set forth in the plans filed with the
permit application. The permit shall not grant authority to the permittee
to impinge upon the rights of others who may also have an interest
in the public rights-of-way.
a.
Request for Deviations. A carrier proposing to deviate from one or
more of the provisions of this section shall do so in writing to the
Zoning Officer as part of the permit application. The request shall
identify each provision of this section from which a deviation is
requested and the reasons why a deviation should be granted.
b.
Authority to Grant Deviations. Before granting or denying any deviation the Zoning Officer shall first consult with the Borough's Telecommunications Consultant and may seek input or advice from any Borough Official including, but not limited to the Borough Solicitor and/or Borough Engineer. The Zoning Officer shall have no authority to grant a deviation from any conditions of § 15-4.5, Conditions and Requirements. The Zoning Officer shall decide for all other requests whether a deviation is authorized by this section and the carrier requesting the deviation has demonstrated that:
1.
One or more conditions not under the control of the carrier (such
as terrain features or an irregular public rights-of-way line or condition)
create a special hardship that would make enforcement of the provision
unreasonable, given the public purposes to be achieved by the provision;
and
2.
All other designs, methods, materials, locations or facilities that
would conform to the provision from which a deviation is requested
are impracticable in relation to the requested approach.
c.
Additional Conditions for Granting of a Deviation. As a condition
for authorizing a deviation, the Zoning Officer may require the carrier
requesting the deviation to meet reasonable standards and conditions
that may or may not be expressly contained within this section but
which carry out its purposes.
d.
Material Deviations. In the event the actual size, type, material,
or location of any facilities installed in the public rights-of-way
deviate in a materially significant way from that which was shown
on the plans submitted with the zoning permit application, the permittee
shall file new plans with the Zoning Officer within 30 days of request
or be subject to a stop work order, an order of removal, or a requirement
to apply to the governing body for relief.
e.
Referral to Site Review Committee. If the Zoning Officer determines, after consulting with the Borough Telecommunications Consultant, that the deviation requested (or existing) is a major deviation and/or that practical hardship has not been properly demonstrated, or is a deviation from § 15-4, the request shall be referred to the Business Administrator who shall refer the matter to the Site Committee for review. If the Site Committee denies the request for a deviation, then the permittee shall, within 30 days of said denial, either remove the facility from the public rights-of-way (if installed) or modify the facility so that it conforms to this section and submit revised plans to the Zoning Officer for approval.
f.
Review Fees. Any reasonable professional fees incurred by the Site
Committee in its review of a request for a deviation or as a result
of the installation of a facility in violation of this section, and
for which no approval is granted, shall be paid to the Borough within
30 days and prior to the issuance of the zoning permit as permitted
by N.J.S.A. 54:30A-124. An escrow of $2,500 shall be submitted with
the request for deviation to the office of the Business Administrator
to cover such fees and be replenished as deemed appropriate by the
Zoning Officer.
Cross reference: Appendix A.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
g.
The Site Review Committee may, with the approval of Borough Council,
grant a deviation or waive any requirement of this section whenever
there is good cause and it is determined that to do so furthers the
intent and purpose of this section, facilitates the orderly and efficient
deployment of small cell facilities and equipment within the Borough
and it appears that the best interest of the Borough and the public
is served in doing so.
a.
Required Coverage and Limits. Each carrier constructing a facility
in the public rights-of-way shall secure and maintain commercial general
liability insurance with limits not less than $2,000,000 for injury
or death on one or more persons in any one occurrence and $2,000,000
for damage or destruction in any one occurrence insuring the carrier
as named insured and listing the Borough as an additional insured
on the policies.
b.
Copies Required. The carrier shall provide copy of certificates of
insurance reflecting the requirements of this section to the Borough
within 10 days following zoning approval and prior to obtaining a
construction permit pursuant to this section.
c.
Self-Insurance. A carrier may self-insure all or a portion of the insurance coverage and limit requirements required by Subsection a of this section. A carrier that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insured under Subsection a or the requirements of Subsection b of this section. A carrier that elects to self-insure shall provide to the Borough evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit required under Subsection a of this section. Proof of such financial ability to self-insure shall be provided to the Borough within 10 days following the effective date of the master license agreement and prior to obtaining a permit pursuant to this section.
d.
Effect of Insurance and Self-Insurance on Carrier's Liability. The
legal liability of the carrier to the Borough and any person for any
of the matters that are the subject of the insurance policies or self-insurance
required by this section shall not be limited by such insurance policies
or self-insurance or by the recovery of any amounts thereunder; however,
neither the Borough nor the carrier shall be liable to the other for
consequential, incidental, exemplary or punitive damages on account
of any activity pursuant to this section.
Prior to constructing a facility in the public rights-of-way,
and as a precondition to the issuance of a permit pursuant to this
section, the carrier shall execute the master license agreement, agreeing,
among other things, to indemnify and hold harmless the Borough against
any claim of liability or loss from personal injury or property damage
resulting from or arising out of the negligence or willful misconduct
of the carrier, its employees, contractors or agents, except to the
extent such claims or damage may be due to or caused by the negligence
or willful misconduct of the Borough or its employees, contractors
or agents. The Borough will provide the carrier with prompt, written
notice of any claim covered by this indemnification; provided that
any failure of the Borough to provide any such notice, or to provide
it promptly, shall not relieve the carrier from its indemnification
obligation in respect of such claim, except to the extent the carrier
can establish actual prejudice and direct damages as a result thereof.
The Borough shall cooperate with the carrier in connection with the
carrier's defense of such claim. The carrier shall defend the Borough,
at the Borough's request, against any claim with counsel of the Borough's
choosing that is reasonably satisfactory to the carrier.
Cross reference: § 15-4.3 (master license agreement; Procedure to Obtain Permits).
a.
Right to Revoke Permit.
1.
The Zoning Officer or Zoning Enforcement Officer may revoke or suspend
a permit issued pursuant to this section for one or more of the following
reasons:
(a)
Materially false or incomplete statements in the permit application;
(b)
Noncompliance with one or more provisions this section for which
a deviation has not been allowed;
(c)
The permittee's facilities within the public rights-of-way presents
a direct or imminent threat to the public health, safety, or welfare;
(d)
The permittee's failure to construct the facilities substantially
in accordance with the permit and approved plans; or
(e)
Violation of the terms and conditions of the master license
agreement.
2.
Before taking any such action, the Zoning Officer and/or Zoning Enforcement
Officer shall first consult with the Borough's Telecommunications
Consultant and the Borough Administration and Borough Solicitor.
b.
Notice of Revocation or Suspension. The Zoning Officer shall send
written notice of its intent to revoke or suspend a permit issued
pursuant to this section stating the reason or reasons for the revocation
or suspension and the alternatives available to permittee under this
section.
c.
Permittee Alternatives Upon Receipt of Notice of Revocation or Suspension.
Upon receipt of a written notice of revocation or suspension from
the Zoning Officer, the permittee shall have the following options:
1.
Immediately provide the Borough with evidence that no cause exists
for the revocation or suspension;
2.
Immediately correct, to the satisfaction of the Zoning Officer, the
deficiencies stated in the written notice, providing written proof
of such correction to the Zoning Officer within 10 business days after
the receipt of the written notice of revocation; or
3.
Within 10 business days remove the facilities located within the
public rights-of-way and restore the public rights-of-way to the satisfaction
of the Zoning Officer, providing written proof of such removal to
the Zoning Officer within 10 business days after receipt of the written
notice of revocation. The Zoning Officer may, in her discretion, extend
the time periods provided in this subsection. To be effective extensions
must be in writing.
Notification of Change. A carrier shall notify the Borough no
less than 30 days following the transfer of ownership of any facility
in the public rights-of-way or change in identity of the carrier.
The rights and obligations given to the carrier pursuant to the master
license and zoning permit shall be binding on and benefit the new
owner of the carrier or the facility, its successors and assigns,
who shall have all the obligations and privileges enjoyed by the former
owner under the master license agreement, zoning permit, and all applicable
laws, ordinances, rules and regulations, including this section, with
respect to the work and facilities in the public rights-of-way.
a.
Warning Signs, Protective Devices, and Flaggers. The carrier is responsible
for providing and installing warning signs, protective devices and
flaggers, when necessary for protection of the public and the carrier's
workers when performing work on the public rights-of-way. The carrier
and its contractor(s) and subcontractors shall comply with the provisions
of the Manual of Uniform Traffic Control Devices to the extent applicable
and necessary.
b.
Interference with Traffic. All work shall be phased so that there
is minimum interference with pedestrian and vehicular traffic.
c.
Compliance. The carrier shall take immediate action to correct any
deficiencies in traffic protection requirements that are brought to
the carrier's attention by the Zoning Officer, Borough Engineer, Fire
Department, or Police Department, Department of Public Works and Utilities
or Code Enforcement.
a.
Notice. Within 30 days following written notice from the Borough,
any carrier with facilities in the public rights-of-way shall, at
its own expense, temporarily or permanently remove, relocate, change
or alter the position of any facilities whenever the Borough determines
that a) such removal, relocation, change or alteration, is reasonably
necessary for the construction, repair, maintenance, or installation
of any Borough improvement in or upon the public rights-of-way; or
b) because the equipment is interfering with or adversely affecting
proper operation of the light or other poles; or c) the widening of
the public rights-of-way. In such instance, the Borough shall cooperate
with carrier to find a replacement location for the facility that
will provide similar radio frequency coverage to the facility removed
or relocated.
b.
Removal of Unauthorized Facilities.
1.
Within 30 days following written notice from the Zoning Officer to
any carrier that owns, controls, or maintains any unauthorized facility
or related appurtenances within any public rights-of-way shall, at
its own expense, remove all or any part of such facilities or appurtenances.
A facility is unauthorized and subject to removal, but not limited
to, in the following circumstances:
(a)
Upon expiration or termination of the permittee's license, unless
otherwise permitted by applicable law;
(b)
If the facility was constructed without the prior grant of a
zoning permit;
(c)
If the facility was constructed without prior issuance of a
required construction permit;
(d)
If the facility was constructed at a location not permitted
by the permittee's permit; or
(e)
Upon abandonment of the facility. Abandonment will be presumed
where a facility has not been used for the purpose for which it was
installed for a period of 90 consecutive days, or more, and where
there have been no efforts to repair or renew the use during the ninety-day
period. The carrier owning, controlling or maintaining the facility
shall have the burden of establishing to the Zoning Officer that the
facility is still being used within 30 days of the notice. All notices
described herein shall be in writing and sent by recognized national
overnight courier (e.g., U.S. Postal, Federal Express or UPS) for
which proof of delivery is supplied. Failure to respond to the Zoning
Officer's request for information regarding the abandonment of the
facility shall constitute a presumption of abandonment. Upon the Zoning
Officer's determination and final written notification to the carrier
of such abandonment the carrier shall have 60 days within which to:
2.
If the entity believes that the determination of abandonment by the Zoning Officer is incorrect it may file a written appeal with the Site Committee as provided in § 15-4.17 hereof within 30 days of the Zoning Officer's determination. If the entity fails to prevail on appeal, or fails to reactivate, or transfer to another active user or remove the service facility the Borough shall have the right to have the facilities removed at the carrier's sole expense. The Borough shall be entitled to reimbursement for all costs and expenses associated with the removal of any facility thereafter.
Upon completion of all construction or maintenance of facilities,
the carrier shall remove all debris and restore the right-of-way to
a clean and safe condition in a timely manner and to the satisfaction
of the Zoning Officer and the Director of the Department of Public
Works and Utilities.
a.
General. Facilities within public rights-of-way shall be maintained
by or for the carrier at the carrier's sole expense. The carrier shall
not damage the public right-of-way and shall keep the public right-of-way
free of all debris. If any portion of the public right-of-way suffers
damage by reason of access by carrier, then in that event, carrier,
at its sole cost and expense, shall immediately repair all such damage
or replace the damaged portion of the public right-of-way and restore
the damaged portion of the property to its condition prior to the
occurrence of such damage.
b.
Emergency Maintenance Procedures. The noncompliance with normal procedures
for securing a required permit shall be excused when a carrier reasonably
determines that an emergency exists.
1.
If an emergency creates a hazard on the traveled portion of the public
rights-of-way, the carrier shall take immediate steps to provide all
necessary protection for traffic on the roadway including the use
of signs, lights, barricades or flaggers.
2.
In an emergency, the carrier shall, as soon as practical, notify
the Borough Zoning Officer or his or her duly authorized agent and
the Borough of Avalon Police Department of the emergency, informing
him or her as to what steps have been taken for protection of the
traveling public and what will be required to make the necessary repairs.
On nights and weekends, the carrier shall notify the Borough of Avalon
Police Department of an emergency if the Borough Zoning Officer is
unavailable. If the nature of the emergency is such as to interfere
with the free movement of traffic, the Borough of Avalon Police Department
shall be notified immediately. To the extent that the Borough of Avalon
has actual knowledge of the displacement or damage to any facility,
it shall inform the carrier upon learning of the same.
a.
There is hereby created under this section a group to be known as
the Site Committee consisting of not less than three nor more than
five members consisting of the following:
b.
The function of the Site Committee shall be as follows:
1.
Review and approve an inventory of all existing wood poles in the
Borough submitted by a carrier for the installation of a wireless
facility as defined herein and submit that recommendation to Borough
Council.
2.
Review and approve the type and location of any new or replacement
pole prior to the issuance of a zoning permit and construction permit
under this section and submit that recommendation to Borough Council.
3.
Initially hear and decide any appeal of any determination by any
administrative officer such as the Business Administrator, Zoning
Officer, or Construction Official except that any appealable issue
arising under the New Jersey Uniform Construction Code (UCC) shall
be heard by the Cape May County Board of Construction Appeals and
not by the Site Committee.
4.
The Committee may, in its discretion, consult with any Borough consultant
regarding the issues under consideration including, but not limited
to, the Borough Telecommunications Consultant, Engineer, Solicitor
or any Borough Board or Commission.
c.
Procedure:
1.
Appeals to the Site Committee shall proceed informally. Generally,
an appeal shall be filed within 30 days of the decision being appealed
and shall be in writing specifying the reason and grounds for the
appeal. A hearing on the appeal shall be scheduled not sooner than
20 nor later than 30 business days from the date of filing. A decision
shall be rendered, in writing, within 15 business days following the
hearing.
2.
A carrier, or any other aggrieved party in interest, may thereafter
appeal the decision of the Site Committee to the Borough Council by
filing a notice of appeal within 30 days following the written decision
of the Site Committee. Such notice must be in writing, specify the
reasons and grounds for such appeal. Upon the filing of such an appeal
the Borough Council may choose one of the following:
(a)
Refer the matter to a Hearing Officer who shall conduct a hearing
substantially following the procedure for administrative hearings
in New Jersey. The Hearing Officer shall then submit his/her findings
and conclusions with 15 business days after the close of the Hearing.
Borough Council may then accept, reject, or modify the decision of
the Hearing Officer based on the record developed before the Hearing
Officer; or
(b)
Borough Council may select an ad hoc committee of its membership
to hear and decide the appeal; or
(c)
Borough Council may decide to have the full Council decide the
matter.
3.
Following the exhaustion of such administrative remedies, any aggrieved
person or entity may pursue a further appeal to a court of competent
jurisdiction subject to the rules of such court.
Nothing in this section shall be construed as limiting any additional
or further remedies that the Borough may have for enforcement of this
section or the right of a carrier to appeal any decision to the state
courts of New Jersey or the United States District Court for the District
of New Jersey.
Any person or entity who violates any of the provisions of this § 15-4 shall, upon conviction, be subject to the penalties set forth in § 1-5 of this Code including the provision for enhanced penalties provided therein. The penalties under this subsection shall be in addition to, and not in place of, any other penalty or sanction prescribed herein.
Borough Council finds, determines and acknowledges the following:
a.
It is necessary and appropriate to supplement and/or amend the Avalon
Borough Code to address issues associated with the deployment of wireless
communications facilities in the public rights-of-way.
b.
It acknowledges that wireless communications carriers may enter into
written agreements with parties that have the lawful right to erect
poles in the public rights-of-way pursuant to N.J.S.A. 48:3-18, and
that the consent of the municipality is required pursuant to N.J.S.A.
48:3-19, if the party seeking to install such facilities does not
have an independent lawful right to construct such facilities.
c.
There exists a present need to provide for the deployment of small
wireless facilities throughout the Borough.
d.
The Borough Council of the Borough of Avalon deems it necessary and
appropriate to supplement and/or amend the Borough Code to address
issues associated with the deployment of wireless communications facilities
in the public rights-of-way; and
e.
It is in the public interest to encourage the prompt deployment of
communications facilities in order to improve the efficiency and capacity
of communications networks that serve the public.
f.
The purpose of this section is to allow the prompt deployment of
wireless communications facilities in the public rights-of-way while
also effectively managing the rights-of-way in the interests of the
public health, safety and welfare, through the use of co-location
and multicarrier wireless facilities which minimize the number of
wireless facilities throughout the Borough.
g.
The Borough acknowledges that in connection with the use of those
public rights-of-way under the jurisdiction of the County of Cape
May, municipal consent is required in addition to the consent of the
county pursuant to N.J.S.A. 27:16-6; and
h.
The Borough acknowledges that notwithstanding the proscriptions of
47 U.S.C. § 253(a), it has the authority to manage the public
rights-of-way as provided in 47 U.S.C. § 253(c).
a.
For the purposes of this section, the following terms, phrases, words,
and their derivatives shall have the meaning given herein. When not
inconsistent with the context, words used in the present tense include
the future, words in the plural include the singular, and words in
the singular include the plural. Any term not defined in this section
shall have the meaning ascribed to it in the New Jersey Municipal
Land Use Law, N.J.S.A. 40:55D-1 et seq., unless the context clearly
requires otherwise. In the event that a term is not defined by this
section, said term shall have its common and/ordinary meaning.
b.
APPLICANT
BOROUGH
CARRIER
CO-LOCATION
COMPETITIVE LOCAL EXCHANGE CARRIERS (CLECS)
1.
2.
3.
CONDUIT
CONSTRUCTION PERMIT
COUNTY
DAY OR DAYS
FACILITY OR FACILITIES
GOVERNING BODY
MUNICIPALITY
PERMITTEE
PERSONAL WIRELESS SERVICE FACILITIES
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
REVIEW COMMITTEE OF THE BOROUGH OR SITE COMMITTEE
STEALTH STRUCTURE —MEANS
1.
2.
STREET
THIRD-PARTY OPERATOR
UTILITY POLE
ZONING OFFICER
ZONING PERMIT
Definitions:
The entity seeking a Borough permit to construct or install
a wireless facility or facilities in the Borough right-of-way. "Applicant"
shall include a carrier, a competitive local exchange carrier (CLEC)
or other third-party operator as herein defined. The applicant shall
notify its contractors and subcontractors of the requirements of this
section and shall be responsible for any violations of this section
by any of its contractors. "Applicant" shall include the term "permittee"
when required permits have been issued pursuant to this section.
The Borough of Avalon, in the County of Cape May, State of
New Jersey.
Any firm, partnership, association, corporation, limited
liability company, or any other legally recognized organization, licensed
by the Federal Communications Commission to provide personal wireless
services or authorized by the New Jersey Board of Public utilities
to provide telecommunications services in the State of New Jersey.
The shared use of wireless facilities by more than one wireless
carrier.
A phone company authorized by the new jersey board of public
utilities (sometimes referred to as "NJBPU") to provide telecommunications
services in direct competition with the incumbent local exchange carriers
(ILECS) and other CLECS using its own wires and facilities or through
wholesale sharing arrangements with other providers. This does not
include wireless carriers. [SOURCE: NJBPU-FAQ]
As an approved CLEC, the carrier receives certain rights and
privileges related to access to rights-of-way, poles and conduits
to place its wires and facilities used only in the provision of landline
telecommunications services.
If CLECs are providing wireless services, which are not within
the Board's jurisdiction, the CLEC must follow federal and local municipal
zoning rules to gain access to rights of-ways, poles and conduits
to provide its wireless services.
If an approved CLEC also provides wireless services or wireless
capacity to a wireless provider, it must obtain local zoning approval
and permits from the municipality.
A casing or encasement for wires or cables.
That permit issued by the Construction Official of the Borough
of Avalon in accordance with the Uniform Construction Code of New
Jersey to permit construction or installation of telecommunications
equipment pursuant to this section. (A zoning permit is a required
prior approval necessary for the issuance of a construction permit.)
The County of Cape May, State of New Jersey.
Calendar days unless the text should indicate business days.
Calendar days include Saturday, Sunday, and legal holidays. Business
days shall exclude Saturday, Sunday, and legal holidays.
All structures, devices, equipment and materials, including
but not limited to: antennas, radios and radio cabinets, electrical
wires and cables, fiber optic cables, communications and video cables
and wires, poles, conduits, pads, backup power supply and other components
of personal wireless service facilities, and appurtenances thereto,
located in the public rights-of-way. Each pole mounting set up shall
be a separate facility for regulatory purposes, applications, and
fees.
The Borough Council of the Borough of Avalon in the County
of Cape May, State of New Jersey.
The Borough of Avalon, County of Cape May, State of New Jersey.
The entity to which a permit has been issued pursuant this
section and master license agreement for use of public rights-of-way.
This term shall also mean any contractor or subcontractor doing any
work for the carrier.
Equipment at a fixed location that enables personal wireless
service between user equipment and a communications network, including
but not limited to: a) equipment associated with personal wireless
services such as private, broadcast and public safety services, as
well as unlicensed wireless services and fixed wireless services;
and b) tower, radio transceivers, antennas, coaxial or fiber-optic
cable, regular and backup power supplies and comparable equipment,
regardless of technological configuration.
Any technologies defined in 47 U.S.C. § 332(c)(7)
including commercial mobile services, unlicensed wireless services,
and common carrier wireless exchange access services, provided to
personal mobile communication devices through wireless facilities
or any fixed mobile wireless services provided using personal wireless
facilities.
The surface, the air space above the surface, and the area
below the surface of any street, road, highway, lane, alley, boulevard,
or drive, including the sidewalk, shoulder and area for utilities
owned or controlled by the Borough of Avalon or the County of Cape
May or within an easement to the public or other easement owned or
controlled by the Borough of Avalon or the County of Cape May.
That Committee established pursuant to § 15-4.17.
A new structure for the mounting of facilities, such as a light
pole with integrated antenna, with aesthetics found to be reasonably
acceptable to the Site Review Committee. Such a structure shall only
be permissible when it is conclusively demonstrated that existing
facilities in the area are not adequate or sufficient and that there
is no practical or feasible alternative to the construction of a stealth
structure. However, even if the applicant conclusively demonstrates
that existing facilities in the area are not adequate or sufficient
and that there is no practical or feasible alternative to the construction
of a stealth structure, the application may be denied if the Borough
determines that the location of the proposed stealth structure is
not appropriate under all of the applicable facts and circumstances
or otherwise fails to meet the requirements of this section. If the
application is denied, the applicant shall be entitled to appeal as
herein provided.
|
Cross Reference: See Section 15-4.17(Appeals); 15-4.8 (Deviations);
15-4.3(e) (master license agreement); 15-4.5 (Conditions and Requirements)
|
By "reasonably acceptable" is meant that the proposed facility
or facilities must, to the greatest extent possible, duplicate other
structures such as utility poles in the immediate vicinity [e.g.,
similar size, color, height, design] and shall otherwise meet all
the standards established by this section.
Any street, avenue, boulevard, road, parkway, viaduct, drive
or other way as defined in the Municipal Land Use Law, N.J.S.A. 40:55D-7.
An applicant or permittee that is not specifically a licensed
wireless carrier or CLEC that will build, operate and maintain wireless
facilities for the provision of service of one or more wireless carriers.
A tall wooden pole that is used to support telephone wires,
electrical wires, etc.
The Zoning Officer of the Borough of Avalon or his/her authorized
designee, including the Assistant Zoning Officer.
The document signed by the Zoning Officer pursuant to N.J.S.A.
40:55D-18 that is required as a condition precedent to the installation
of an individual facility and which acknowledges that the facility
complies with the provisions of this section, or approved deviation
therefrom.
a.
Use of Existing Poles.
1.
A carrier seeking to use the Borough rights-of-way for the installation
of facilities as defined by this section must first execute the master
license agreement approved by the Borough Council.
2.
Prior to the execution of the master license agreement, the carrier
shall provide to the Borough a complete list or inventory of existing
poles within the Borough that the carrier will or may use for the
installation of facilities. Such inventory shall be physically viewed
and inspected by the Borough within 30 calendar days of receipt and
the carrier shall be notified as to whether the designated poles are
satisfactory. If any are rejected, the Borough shall notify the carrier
of the pole or poles rejected and the reasons for rejection. Once
the final list is agreed upon by the carrier and the Borough Administration,
the list shall be submitted to Borough Council for approval by resolution.
Once approved, such approval shall be good for five years from the
date of approval. During such five-year approval period the carrier
may, at any time, make use of any of the pre-approved poles by filing
an application for a permit with the Borough Zoning Officer with a
copy of the notice to both the Borough Clerk and Business Administrator.
The Zoning Officer shall issue a zoning permit with the necessary
construction permit to follow in due course.
3.
No pole or poles shall be used unless a zoning permit and construction
permit is issued as provided herein.
4.
A zoning permit and construction permit may cover multiple installations
in multiple locations provided the specific locations are designed
in the permit application.
b.
Use of New or Replacement Poles.
1.
When a carrier concludes that an existing pole or poles cannot be
utilized or is unsuitable for the installation of facilities under
this section, the carrier may propose the use of a replacement pole
or the installation of an additional pole within the right-of-way.
The carrier shall submit a preliminary request to the Zoning Officer
with copies to both the Borough Clerk and Borough Administrator. Such
preliminary request shall contain the exact location of the existing
or proposed pole; whether it is a proposed replacement of an existing
pole or an additional pole; if an additional pole a description of
the proposed installation and type of pole to be utilized; and such
additional information as the Borough may require. This Subsection
applies to any proposal to install/construct a stealth structure as
those terms are defined herein. A new pole or installation will only
be approved when a carrier establishes by conclusive evidence that
existing facilities are either unusable or unsuitable under the existing
circumstances.
2.
Upon receipt of a complete applications, and after such supplementation as the Borough may require, the application will be reviewed by the Borough which may include a review by the Site Committee established under this section and within such times as specified in § 15-4.6 (Action on zoning permits and Applications).
3.
If the carrier agrees with the preliminary determination, the site
inventory of poles will be updated and the matter submitted to Borough
Council for approval and, upon approval, the zoning permit and construction
permit may issue.
a.
Permit Required. No carrier, without first filing an application
and obtaining a zoning permit from the Borough Zoning Officer pursuant
to N.J.S.A. 40:55D-18, shall construct any facility within any public
right-of-way.
b.
Application Requirements. The application shall contain, at a minimum,
the following:
1.
The carrier's name and address and telephone number of the contact
person for such carrier;
2.
The applicant's name and address, if different than the carrier,
and telephone number of the contact person for such applicant;
3.
The names, addresses, telephone number of the professional consultants,
if any, advising the applicant with respect to the application;
4.
A brief description of the proposed work;
5.
A plan with specifications of the facility showing the work proposed,
including sufficient information regarding the components of the facility,
including their types and quantities;
6.
Any request for a deviation from one or more provisions of this section;
and
7.
Such additional information as may be reasonably required by the
Borough Zoning Officer.
d.
Recurring Fees. Annual recurring fees shall be payable as set forth
in Appendix A.
a.
Installation of facilities. It shall be lawful for wireless communication
carriers to install facilities in the public rights-of-way on existing
wooden poles only, and such carriers shall comply with all requirements
of this section and the terms and conditions of the master license
agreement. All applicants shall obtain any and all approvals necessary
from the owner and/or operator of the wooden utility poles to be used;
b.
Other approvals. All applicants shall obtain any and all approvals
necessary from any other governmental agency in addition to the owner
and/or operator of the wooden utility poles to be used;
c.
Height. No antenna or attachment to an existing wooden utility pole
shall exceed the height of that pole by more than five feet;
d.
New poles. No new poles shall be erected for the purpose of placing facilities regulated herein. The setting of utility poles is regulated by the new Jersey Board of Public Utilities (BPU), the Borough authorizes only the utility company to set utility poles in the public rights-of-way in their normal course as they deem appropriate and/or necessary subject to BPU regulation. Any proposed new pole shall follow the procedure specified in § 15-4.3b et seq. A new pole will be authorized only when a carrier conclusively demonstrates that existing poles or facilities are unsuitable or unusable;
e.
Pole-mounted equipment. Equipment shall be pole mounted at a minimum
of eight feet from the ground and/or shall conform to all Flood Prevention
Ordinance[1] requirements of the Borough including but not limited
to base flood plus elevations required, whichever is higher in height,
and the facility is mounted on a structure 50 feet or less in height,
including the antenna or is mounted on a structure no more than 10%
taller than other adjacent structures or does not extend existing
structures on which they are located to a height of more than 50 feet
or by more than 10%, whichever is greater; each antenna associated
with the deployment, excluding associated antenna equipment, is no
more than three cubic feet in volume; all other wireless equipment
associated with the structure, including wireless equipment associated
with the antenna and any pre-existing associated equipment on the
structure, is no more than 28 cubic feet in volume;
f.
Ground-mounted equipment. No ground-mounted equipment is permitted
on or around any pole;
g.
Color and conduit. All antennas, conduit and equipment shall be a
color that blends with the wooden utility pole on which it is mounted.
Any cables or wiring attached to the utility pole shall be covered
with an appropriate conduit;
h.
Construction permits. Subsequent to the issuance of the zoning permit,
the permittee shall obtain any necessary permits required pursuant
to the current Uniform Construction Code adopted in New Jersey prior
to installation;
i.
Underground work. All underground work shall follow standard road
opening permit requirements; and
j.
Co-locate. All carriers shall co-locate and cooperate with each other
to minimize the impact and number of facilities on and in the public
rights-of-way.
The Zoning Officer shall approve or reject the permit application
within 10 business days, unless the applicant consents, in writing,
to an extension of time beyond the 10 days. If the application is
rejected, the reason for such rejection shall be stated in writing.
If the Zoning Officer determines that the permit application is incomplete
and insufficient to enable the Zoning Officer to either approve or
reject the application then, in such case, the Zoning Officer shall
inform the applicant in writing what information is missing and this
shall be deemed a denial of the application. If the application does
not conform to the requirements of this section and no request for
a deviation is made with the application, the Zoning Officer shall
reject such application in writing, stating the reasons therein. If
the Zoning Officer is satisfied that the application conforms to the
requirements of this section, the Zoning Officer shall issue a permit
therefor as follows:
A zoning permit from the Zoning Officer shall confirm compliance
with this section and shall authorize the permittee to apply for construction
permits to undertake the work set forth in the plans filed with the
permit application. The permit shall not grant authority to the permittee
to impinge upon the rights of others who may also have an interest
in the public rights-of-way.
a.
Request for Deviations. A carrier proposing to deviate from one or
more of the provisions of this section shall do so in writing to the
Zoning Officer as part of the permit application. The request shall
identify each provision of this section from which a deviation is
requested and the reasons why a deviation should be granted.
b.
Authority to Grant Deviations. Before granting or denying any deviation the Zoning Officer shall first consult with the Borough's Telecommunications Consultant and may seek input or advice from any Borough Official including, but not limited to the Borough Solicitor and/or Borough Engineer. The Zoning Officer shall have no authority to grant a deviation from any conditions of § 15-4.5, Conditions and Requirements. The Zoning Officer shall decide for all other requests whether a deviation is authorized by this section and the carrier requesting the deviation has demonstrated that:
1.
One or more conditions not under the control of the carrier (such
as terrain features or an irregular public rights-of-way line or condition)
create a special hardship that would make enforcement of the provision
unreasonable, given the public purposes to be achieved by the provision;
and
2.
All other designs, methods, materials, locations or facilities that
would conform to the provision from which a deviation is requested
are impracticable in relation to the requested approach.
c.
Additional Conditions for Granting of a Deviation. As a condition
for authorizing a deviation, the Zoning Officer may require the carrier
requesting the deviation to meet reasonable standards and conditions
that may or may not be expressly contained within this section but
which carry out its purposes.
d.
Material Deviations. In the event the actual size, type, material,
or location of any facilities installed in the public rights-of-way
deviate in a materially significant way from that which was shown
on the plans submitted with the zoning permit application, the permittee
shall file new plans with the Zoning Officer within 30 days of request
or be subject to a stop work order, an order of removal, or a requirement
to apply to the governing body for relief.
e.
Referral to Site Review Committee. If the Zoning Officer determines, after consulting with the Borough Telecommunications Consultant, that the deviation requested (or existing) is a major deviation and/or that practical hardship has not been properly demonstrated, or is a deviation from § 15-4, the request shall be referred to the Business Administrator who shall refer the matter to the Site Committee for review. If the Site Committee denies the request for a deviation, then the permittee shall, within 30 days of said denial, either remove the facility from the public rights-of-way (if installed) or modify the facility so that it conforms to this section and submit revised plans to the Zoning Officer for approval.
f.
Review Fees. Any reasonable professional fees incurred by the Site
Committee in its review of a request for a deviation or as a result
of the installation of a facility in violation of this section, and
for which no approval is granted, shall be paid to the Borough within
30 days and prior to the issuance of the zoning permit as permitted
by N.J.S.A. 54:30A-124. An escrow of $2,500 shall be submitted with
the request for deviation to the office of the Business Administrator
to cover such fees and be replenished as deemed appropriate by the
Zoning Officer.
Cross reference: Appendix A.[1]
[1]
Editor's Note: Appendix A is included as an attachment to
this section.
g.
The Site Review Committee may, with the approval of Borough Council,
grant a deviation or waive any requirement of this section whenever
there is good cause and it is determined that to do so furthers the
intent and purpose of this section, facilitates the orderly and efficient
deployment of small cell facilities and equipment within the Borough
and it appears that the best interest of the Borough and the public
is served in doing so.
a.
Required Coverage and Limits. Each carrier constructing a facility
in the public rights-of-way shall secure and maintain commercial general
liability insurance with limits not less than $2,000,000 for injury
or death on one or more persons in any one occurrence and $2,000,000
for damage or destruction in any one occurrence insuring the carrier
as named insured and listing the Borough as an additional insured
on the policies.
b.
Copies Required. The carrier shall provide copy of certificates of
insurance reflecting the requirements of this section to the Borough
within 10 days following zoning approval and prior to obtaining a
construction permit pursuant to this section.
c.
Self-Insurance. A carrier may self-insure all or a portion of the insurance coverage and limit requirements required by Subsection a of this section. A carrier that self-insures is not required, to the extent of such self-insurance, to comply with the requirement for the naming of additional insured under Subsection a or the requirements of Subsection b of this section. A carrier that elects to self-insure shall provide to the Borough evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit required under Subsection a of this section. Proof of such financial ability to self-insure shall be provided to the Borough within 10 days following the effective date of the master license agreement and prior to obtaining a permit pursuant to this section.
d.
Effect of Insurance and Self-Insurance on carrier's Liability. The
legal liability of the carrier to the Borough and any person for any
of the matters that are the subject of the insurance policies or self-insurance
required by this section shall not be limited by such insurance policies
or self-insurance or by the recovery of any amounts thereunder; however,
neither the Borough nor the carrier shall be liable to the other for
consequential, incidental, exemplary or punitive damages on account
of any activity pursuant to this section.
Prior to constructing a facility in the public rights-of-way,
and as a precondition to the issuance of a permit pursuant to this
section, the carrier shall execute the master license agreement, agreeing,
among other things, to indemnify and hold harmless the Borough against
any claim of liability or loss from personal injury or property damage
resulting from or arising out of the negligence or willful misconduct
of the carrier, its employees, contractors or agents, except to the
extent such claims or damage may be due to or caused by the negligence
or willful misconduct of the Borough or its employees, contractors
or agents. The Borough will provide the carrier with prompt, written
notice of any claim covered by this indemnification; provided that
any failure of the Borough to provide any such notice, or to provide
it promptly, shall not relieve the carrier from its indemnification
obligation in respect of such claim, except to the extent the carrier
can establish actual prejudice and direct damages as a result thereof.
The Borough shall cooperate with the carrier in connection with the
carrier's defense of such claim. The carrier shall defend the Borough,
at the Borough's request, against any claim with counsel of the Borough's
choosing that is reasonably satisfactory to the carrier.
Cross reference: § 15-4.3 (master license agreement; Procedure to Obtain Permits).
a.
Right to Revoke Permit.
1.
The Zoning Officer or Zoning Enforcement Officer may revoke or suspend
a permit issued pursuant to this section for one or more of the following
reasons:
(a)
Materially false or incomplete statements in the permit application;
(b)
Noncompliance with one or more provisions this section for which
a deviation has not been allowed;
(c)
The permittee's facilities within the public rights-of-way presents
a direct or imminent threat to the public health, safety, or welfare;
(d)
The permittee's failure to construct the facilities substantially
in accordance with the permit and approved plans; or
(e)
Violation of the terms and conditions of the master license
agreement.
2.
Before taking any such action, the Zoning Officer and/or Zoning Enforcement
Officer shall first consult with the Borough's Telecommunications
Consultant and the Borough Administration and Borough Solicitor.
b.
Notice of Revocation or Suspension. The Zoning Officer shall send
written notice of its intent to revoke or suspend a permit issued
pursuant to this section stating the reason or reasons for the revocation
or suspension and the alternatives available to permittee under this
section.
c.
Permittee Alternatives Upon Receipt of Notice of Revocation or Suspension.
Upon receipt of a written notice of revocation or suspension from
the Zoning Officer, the permittee shall have the following options:
1.
Immediately provide the Borough with evidence that no cause exists
for the revocation or suspension;
2.
Immediately correct, to the satisfaction of the Zoning Officer, the
deficiencies stated in the written notice, providing written proof
of such correction to the Zoning Officer within 10 business days after
the receipt of the written notice of revocation, or
3.
Within 10 business days remove the facilities located within the
public rights-of-way and restore the public rights-of-way to the satisfaction
of the Zoning Officer, providing written proof of such removal to
the Zoning Officer within 10 business days after receipt of the written
notice of revocation. The Zoning Officer may, in her discretion, extend
the time periods provided in this subsection. To be effective extensions
must be in writing.
Notification of Change. A carrier shall notify the Borough no
less than 30 days following the transfer of ownership of any facility
in the public rights-of-way or change in identity of the carrier.
The rights and obligations given to the carrier pursuant to the master
license and zoning permit shall be binding on and benefit the new
owner of the carrier or the facility, its successors and assigns,
who shall have all the obligations and privileges enjoyed by the former
owner under the master license agreement, zoning permit, and all applicable
laws, ordinances, rules and regulations, including this section, with
respect to the work and facilities in the public rights-of-way.
a.
Warning Signs, Protective Devices, and Flaggers. The carrier is responsible
for providing and installing warning signs, protective devices and
flaggers, when necessary for protection of the public and the carrier's
workers when performing work on the public rights-of-way. The carrier
and its contractor(s) and subcontractors shall comply with the provisions
of the Manual of Uniform Traffic Control Devices to the extent applicable
and necessary.
b.
Interference with Traffic. All work shall be phased so that there
is minimum interference with pedestrian and vehicular traffic.
c.
Compliance. The carrier shall take immediate action to correct any
deficiencies in traffic protection requirements that are brought to
the carrier's attention by the Zoning Officer, Borough Engineer, Fire
Department, or Police Department, Department of Public Works and Utilities
or Code Enforcement.
a.
Notice. Within 30 days following written notice from the Borough,
any carrier with facilities in the public rights-of-way shall, at
its own expense, temporarily or permanently remove, relocate, change
or alter the position of any facilities whenever the Borough determines
that a) such removal, relocation, change or alteration, is reasonably
necessary for the construction, repair, maintenance, or installation
of any Borough improvement in or upon the public rights-of-way; or
b) because the equipment is interfering with or adversely affecting
proper operation of the light or other poles; or c) the widening of
the public rights-of-way. In such instance, the Borough shall cooperate
with carrier to find a replacement location for the facility that
will provide similar radio frequency coverage to the facility removed
or relocated.
b.
Removal of Unauthorized Facilities.
1.
Within 30 days following written notice from the Zoning Officer to
any carrier that owns, controls, or maintains any unauthorized facility
or related appurtenances within any public rights-of-way shall, at
its own expense, remove all or any part of such facilities or appurtenances.
A facility is unauthorized and subject to removal, but not limited
to, in the following circumstances:
(a)
Upon expiration or termination of the permittee's license, unless
otherwise permitted by applicable law;
(b)
If the facility was constructed without the prior grant of a
zoning permit;
(c)
If the facility was constructed without prior issuance of a
required construction permit;
(d)
If the facility was constructed at a location not permitted
by the permittee's permit; or
(e)
Upon abandonment of the facility. Abandonment will be presumed
where a facility has not been used for the purpose for which it was
installed for a period of 90 consecutive days, or more, and where
there have been no efforts to repair or renew the use during the ninety-day
period. The carrier owning, controlling or maintaining the facility
shall have the burden of establishing to the Zoning Officer that the
facility is still being used within 30 days of the notice. All notices
described herein shall be in writing and sent by recognized national
overnight courier (e.g., U.S. Postal, Federal Express or UPS) for
which proof of delivery is supplied. Failure to respond to the Zoning
Officer's request for information regarding the abandonment of the
facility shall constitute a presumption of abandonment. Upon the Zoning
Officer's determination and final written notification to the carrier
of such abandonment the carrier shall have 60 days within which to:
2.
If the entity believes that the determination of abandonment by the Zoning Officer is incorrect it may file a written appeal with the Site Committee as provided in § 15-4.17 hereof within 30 days of the Zoning Officer's determination. If the entity fails to prevail on appeal, or fails to reactivate, or transfer to another active user or remove the service facility the Borough shall have the right to have the facilities removed at the carrier's sole expense. The Borough shall be entitled to reimbursement for all costs and expenses associated with the removal of any facility thereafter.
Upon completion of all construction or maintenance of facilities,
the carrier shall remove all debris and restore the right-of-way to
a clean and safe condition in a timely manner and to the satisfaction
of the Zoning Officer and the Director of the Department of Public
Works and Utilities.
a.
General. Facilities within public rights-of-way shall be maintained
by or for the carrier at the carrier's sole expense. The carrier shall
not damage the public right-of-way and shall keep the public right-of-way
free of all debris. If any portion of the public right-of-way suffers
damage by reason of access by carrier, then in that event, carrier,
at its sole cost and expense, shall immediately repair all such damage
or replace the damaged portion of the public right-of-way and restore
the damaged portion of the property to its condition prior to the
occurrence of such damage.
b.
Emergency Maintenance Procedures. The noncompliance with normal procedures
for securing a required permit shall be excused when a carrier reasonably
determines that an emergency exists.
1.
If an emergency creates a hazard on the traveled portion of the public
rights-of-way, the carrier shall take immediate steps to provide all
necessary protection for traffic on the roadway including the use
of signs, lights, barricades or flaggers.
2.
In an emergency, the carrier shall, as soon as practical, notify
the Borough Zoning Officer or his or her duly authorized agent and
the Borough of Avalon Police Department of the emergency, informing
him or her as to what steps have been taken for protection of the
traveling public and what will be required to make the necessary repairs.
On nights and weekends, the carrier shall notify the Borough of Avalon
Police Department of an emergency if the Borough Zoning Officer is
unavailable. If the nature of the emergency is such as to interfere
with the free movement of traffic, the Borough of Avalon Police Department
shall be notified immediately. To the extent that the Borough of Avalon
has actual knowledge of the displacement or damage to any facility,
it shall inform the carrier upon learning of the same.
a.
There is hereby created under this Section a group to be known as
the Site Committee consisting of not less than three nor more than
five members consisting of the following:
b.
The function of the Site Committee shall be as follows:
1.
Review and approve an inventory of all existing wood poles in the
Borough submitted by a carrier for the installation of a wireless
facility as defined herein and submit that recommendation to Borough
Council.
2.
Review and approve the type and location of any new or replacement
pole prior to the issuance of a zoning permit and construction permit
under this section and submit that recommendation to Borough Council.
3.
Initially hear and decide any appeal of any determination by any
administrative officer such as the Business Administrator, Zoning
Officer, or Construction Official except that any appealable issue
arising under the New Jersey Uniform Construction Code (UCC) shall
be heard by the Cape May County Board of Construction Appeals and
not by the Site Committee.
4.
The Committee may, in its discretion, consult with any Borough consultant
regarding the issues under consideration including, but not limited
to, the Borough Telecommunications Consultant, Engineer, Solicitor
or any Borough Board or Commission.
c.
Procedure:
1.
Appeals to the Site Committee shall proceed informally. Generally,
an appeal shall be filed within 30 days of the decision being appealed
and shall be in writing specifying the reason and grounds for the
appeal. A hearing on the appeal shall be scheduled not sooner than
20 nor later than 30 business days from the date of filing. A decision
shall be rendered, in writing, within 15 business days following the
hearing.
2.
A carrier, or any other aggrieved party in interest, may thereafter
appeal the decision of the Site Committee to the Borough Council by
filing a notice of appeal within 30 days following the written decision
of the Site Committee. Such notice must be in writing, specify the
reasons and grounds for such appeal. Upon the filing of such an appeal
the Borough Council may choose one of the following:
(a)
Refer the matter to a Hearing Officer who shall conduct a hearing
substantially following the procedure for administrative hearings
in New Jersey. The Hearing Officer shall then submit his/her findings
and conclusions with 15 business days after the close of the Hearing.
Borough Council may then accept, reject, or modify the decision of
the Hearing Officer based on the record developed before the Hearing
Officer; or
(b)
Borough Council may select an ad hoc committee of its membership
to hear and decide the appeal; or
(c)
Borough Council may decide to have the full Council decide the
matter.
3.
Following the exhaustion of such administrative remedies, any aggrieved
person or entity may pursue a further appeal to a court of competent
jurisdiction subject to the rules of such court.
Nothing in this section shall be construed as limiting any additional
or further remedies that the Borough may have for enforcement of this
section or the right of a carrier to appeal any decision to the state
courts of New Jersey or the United States District Court for the District
of New Jersey.
Any person or entity who violates any of the provisions of this § 15-4 shall, upon conviction, be subject to the penalties set forth in § 1-5 of this Code including the provision for enhanced penalties provided therein. The penalties under this subsection shall be in addition to, and not in place of, any other penalty or sanction prescribed herein.
