[Ord. No. 1080, 11/1/2022]
1.
The purpose of this Part is to establish procedures and standards
consistent with all applicable federal and state laws, for the consideration,
permitting, siting, construction, installation, co-location, modification,
operation, regulation and removal of non-tower-based or small wireless
facilities ("SWF") in the public right-of-way of streets and roads.
2.
The intent of this Part is to:
A.
Establish basic criteria for applications to install and/or co-locate
SWFs in the public right-of-way;
B.
Ensure that SWFs are appropriately designed, constructed, modified,
maintained, and removed when no longer in use in conformance with
all applicable health and safety regulations;
C.
Preserve the character of the Township by minimizing the potentially
adverse visual impact of SWFs through careful design, siting, landscaping
and camouflaging techniques to blend these facilities into their environment
to the maximum extent practicable;
D.
Establish an application process and structure for payment of fees
and charges to be uniformly applied to all applicants, operators and
owners of SWFs for such facilities;
E.
Comply with, and not conflict with or preempt, all applicable state
and federal laws, as may be amended or superseded, and all FCC rules
and regulations to interpret and implement applicable federal statutes;
and
F.
Limit interference with the use of streets, sidewalks, alleys, parkways,
public utilities, public views, certain Township corridors, and other
public ways and places.
3.
Zoning. Applications to co-locate an SWF or install or modify an
associated utility pole in the rights-of-way shall be treated as a
permitted use pursuant to Act 50 of 2021, the Small Wireless Facilities
Deployment Act,[1] and exempt from local zoning where required by the Act.
However, the applicant must obtain any and all permits of general
applicability otherwise required for the work required to accomplish
the above, including but not limited to any pave-cut or right-of-way
occupancy permit required under this chapter of Ferguson Township
Code of Ordinances. All other wireless facilities not meeting the
definition of a small wireless facility shall remain subject to any
applicable zoning requirements.
[1]
Editor's Note: See 53 P.S. § 11704.1 et seq.
4.
This chapter is intended to implement the requirements of the Small
Wireless Facilities Deployment Act. Failure of the Township to include
all language set forth in that Act in this Part does not constitute
a waiver of any right under the Act.
[Ord. No. 1080, 11/1/2022]
The provisions of this chapter shall only apply to activities
of a wireless provider within the right-of-way to deploy SWFs and
associated new utility poles with small wireless facilities attached.
[Ord. No. 1080, 11/1/2022]
The following words and phrases when used in this chapter shall
have the meanings given to them in this Part unless the context clearly
indicates otherwise:
Telecommunications equipment that transmits and receives
electromagnetic radio signals used in the provision of all types of
wireless telecommunications services.
Any of the following codes:
Uniform building, fire, electrical, plumbing or mechanical codes
adopted by a recognized code organization or local amendments to those
codes enacted solely to address imminent threats of destruction of
property or injury to persons.
Ferguson Township zoning, land use, streets and sidewalks, rights-of-way
and permitting ordinances.
A communications service provider that submits an application.
A request submitted by an applicant to Ferguson Township:
Buildings, other structures and equipment used by the owner
or operator of a cable television system to provide service. As used
in this definition, the term "cable system" shall have the meaning
given to it in Section 602(6) of the Cable Communications Policy Act
of 1984 [Public Law 98-549, 47 U.S.C. § 522(7)].
To install, mount, maintain, modify, or replace small wireless
facilities on an existing utility pole or other wireless support structure.
A set of equipment and network components, including wires
and cables and associated facilities, used by a communications service
provider to provide a communications service.
Any of the following:
A cable operator as defined in Section 602(4) of the Cable Communications
Policy Act of 1984 [Public Law 98-549, 47 U.S.C. § 522(5)].
A provider of information service as defined in Section 3(20)
of the Communications Act of 1934 [48 Stat. 1064, 47 U.S.C. § 153(24)].
A telecommunications carrier as defined in Section 3(44) of
the Communications Act of 1934 [48 Stat. 1064, 47 U.S.C. § 153(51)].
A wireless provider.
A municipal pole that is specially designed and placed for
aesthetic purposes.
A condition that:
The Federal Communications Commission.
A building that is or a group of buildings, properties or
sites that are:
Listed in the National Register of Historic Places or formally
determined eligible for listing by the Keeper of the National Register.
Determined to be eligible for listing by the Keeper of the National Register of Historic Places who has been delegated the authority by a federal agency to list properties and determine their eligibility for the National Register of Historic Places in accordance with Section VI.D. 1.a.i-v of the Nationwide Programmatic Agreement for Review Regarding the Section 106 National Historic Preservation Act Review Process as specified under 47 CFR Part 1, Appendix C (relating to Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process).
Marked as a historical site by the Pennsylvania Historical and
Museum Commission pursuant to 37 Pa.C.S.A. (relating to historical
and museums).
Within a historic district created pursuant to the act of June
13, 1961 (P.L. 282, No. 167), entitled "An act authorizing counties,
cities, boroughs, incorporated towns and townships to create historic
districts within their geographic boundaries; providing for the appointment
of Boards of Historical Architectural Review; empowering governing
bodies of political subdivisions to protect the distinctive historical
character of these districts and to regulate the erection, reconstruction,
alteration, restoration, demolition or razing of buildings within
the historic districts."
A small wireless facility that:
The improvement, upgrade or replacement of a small wireless
facility or an existing utility pole that does not substantially change,
as defined in 47 CFR 1.6100(b)(7) (relating to wireless facility modifications),
the physical dimension of the small wireless facility or utility pole.
A utility pole owned, managed, or operated by or on behalf
of a municipality.
The area on, below or above a public roadway, highway, street,
sidewalk, alley, utility easement or similar property. The term does
not include a federal interstate highway.
The equipment and network components, including antennas,
transmitters, and receivers, used by a wireless provider that meet
the following qualifications:
Each antenna associated with the deployment is no more than
three cubic feet in volume.
The volume of all other equipment associated with the wireless
facility, whether ground-mounted or pole-mounted, is cumulatively
no more than 28 cubic feet. Any equipment used solely for the concealment
of the small wireless facility shall not be included in the calculation
of equipment volume under this paragraph.
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a material reduction in the functionality
of the small wireless facility.
Buildings, other structures and equipment owned or operated
by a public utility, as defined in 66 Pa.C.S.A. § 102 (relating
to definitions), to provide service.
A pole or similar structure that is or may be used, in whole
or in part, by or for telecommunications, electric distribution, lighting,
traffic control, signage or a similar function or for co-location.
The term includes the vertical support structure for traffic lights
but does not include wireless support structures or horizontal structures
to which signal lights or other traffic control devices are attached.
As follows:
A person authorized by the Pennsylvania Public Utility Commission
to provide telecommunications service in this commonwealth that builds
or installs wireless communication transmission equipment, wireless
facilities or wireless support structures but is not a wireless services
provider.
A wireless infrastructure provider or a wireless services
provider.
Services, whether at a fixed location or mobile, using a
licensed or unlicensed spectrum, provided to the public using wireless
facilities.
A person who provides wireless services.
The term shall have the same meaning given to it in the act
of October 24, 2012 (P.L. 1501, No. 191), known as the "Wireless Broadband
Collocation Act."[1]
[1]
Editor's Note: See 53 P.S. § 11702.1 et seq.
[Ord. No. 1080, 11/1/2022]
1.
In accordance with the Small Wireless Facilities Deployment Act,
and with the permission of the owner of the structure, upon application
to and approval of the Township, a wireless provider shall have the
right to perform the following within the public right-of-way:
2.
Application and Application Fees. No person shall place an SWF or
associated utility pole in the ROW without first filing an application
and obtaining a permit therefor, excepts as otherwise provided in
this chapter.
A.
Application. All applications for the permits filed pursuant to this
chapter shall be on a form, paper or electronic, provided by the Township
and shall contain at a minimum the following:
(1)
The wireless provider's name, address, telephone number,
and email address.
(2)
The applicant's names, address, telephone numbers, and
email address, if different.
(3)
The names, addresses, telephone numbers, and email addresses
of all consultants, if any, acting on behalf of the applicant with
respect to the filing of the application.
(4)
The name, address, telephone numbers, and email address of the
contractor(s) performing the work.
(5)
A general description of the proposed work and the proposed
and intent of the small wireless facilities. The scope and detail
of such description shall be appropriate to the nature and character
of the work to be performed, with special emphasis on those matters
likely to be affected or impacted by the work proposed.
(6)
A site plan, with sufficient detail to show the proposed location
of items the applicant seeks to install in the ROW, including any
manholes or poles, the size, type, and depth of any conduit or enclosure.
(7)
A certificate of insurance naming Ferguson Township as additional
insured with types of coverage and minimum amounts as determined by
the Township.
(8)
An attestation that the SWFs will be operational for use by
a wireless services provider within one year after the permit issuance
date unless the Township and the applicant agree to extend this period.
(9)
An attestation that, to the best of the applicant's knowledge,
the information contained in the application is true.
(10)
Whether each SWF is proposed to be installed on an existing
pole or structure or a new pole or structure.
(11)
The name of the owner of the pole or structure on which the
SWF is proposed to be installed and the address, phone number, email
address of the owner's contact person.
(12)
If an SWF is proposed to be installed on a pole or structure
owner by a party other than the applicant, the application shall be
accompanied by a written confirmation of the owner's agreement
to allow the applicant to locate each SWF on such owner's pole
or structure.
(13)
Documentation in the form of both narrative and drawings indicating
the size of each proposed SWF, the height of the pole or structure
on which each is proposed to be installed, and the cubic volume of
each SWF.
B.
Applications Fees. All applications filed for a permit pursuant to
this chapter shall include a one-time application fee, authorized
by the Small Wireless Facilities Deployment Act, and subject to the
fee adjustment requirements contained therein, as established by a
resolution of the Township Board of Supervisors.
C.
Consolidated Applications. An applicant may submit a consolidated
application for up to 20 SWFs, subject to the following:
(1)
A single applicant shall not exceed applications for 20 SWFs
in a thirty-day period;
(2)
The denial of one or more SWFs in a consolidated application
shall not delay processing of any other SWFs in the same consolidated
application;
(3)
A single permit may be issued for siting and co-locating multiple
SWFs spaced to provide wireless coverage in a contiguous area; and
(4)
If multiple applicants submit applications cumulatively exceeding
20 SWF applications within a thirty-day period, the extensions to
deadlines provided for in the Small Wireless Facilities Act shall
apply.
D.
When Application Not Required.
(1)
An application shall not be required for:
(a)
Routine maintenance;
(b)
The replacement of a small wireless facility with another small
wireless facility that is substantially similar in size, weight, and
height; or
(c)
For the installation, placement, maintenance, operation, or
replacement of microwireless facilities that are strung on cables
between existing utility poles, in compliance with the National Electrical
Safety Code.
(2)
However, all permits of general applicability otherwise required for the work required to accomplish the above, including but not limited to any pave-cut of right-of-way occupancy permit required under Chapter 21, Streets and Sidewalks, of the Ferguson Township Code of Ordinances. In all cases, whether under permit or not under permit, all work in the Township right-of-way shall be performed in accordance with PennDOT Publication 213, Temporary Traffic Control Guidelines, and flagmen shall be certified in the work they perform, and all workers shall wear approved high visibility safety gear.
3.
Right-of-Way Use Fees. Wireless providers shall be required to pay
an annual wireless use fee for the use of right-of-way. The wireless
use fee shall be set by resolution of the Township Board of Supervisors.
The Township may amend the fee from time to time by resolution of
the Township Board of Supervisors to a rate not to exceed the maximum
rate which it demonstrates is a reasonable approximation of the Township's
costs to manage the right-of-way, consistent with the law.
4.
Township Pole Make-Ready Fees. In accordance with the Small Wireless
Facilities Deployment Act, co-location on Township-owned poles may
be permitted unless the small wireless facility would cause structural
or safety deficiencies to the municipal pole. Any application to co-locate
on a Township-owned pole requires certification from a structural
engineer that the existing pole can safely handle the additional load
and modification including pole penetrations and the structural integrity
of the pole is not compromised. Should the pole require upgrades or
make-ready work for modification, all costs for the improvements shall
be borne by the applicant. The Township shall provide a good faith
estimate for any make-ready work necessary to enable a Township-owned
pole to support the requested co-location within 60 days after receipt
of a complete application. Make-ready work, including pole replacement,
shall be completed within 60 days of written acceptance of the good
faith estimate by the applicant.
[Ord. No. 1080, 11/1/2022]
1.
Review of Small Wireless Facility and Utility Pole Applications.
A.
Within 10 days of receiving an initial application, the Township
will determine and notify the applicant whether the application is
materially complete. Each application shall be accompanied by a checklist
from the applicant identifying all elements required in the application
as required by the Township to be considered materially complete.
The processing deadline set forth below shall restart at zero on the
date which the applicant submits all documents and information identified
by the Township to make the applicant complete. If the applicant fails
to submit all required documents information within 20 days of the
notification to the applicant, the Township may deny the application.
B.
The Township shall approve or deny an application for:
C.
An applicant and the Township may enter into a written agreement
to toll the time periods set forth in Subsection 1B.
D.
The Township may deny a proposed co-location of an SWF or installation
or modification of a utility pole only if the proposed application:
(1)
The SWF materially interferes with the safe operation of traffic
control equipment, sight lines or clear zones for transportation or
pedestrians or compliance with the Americans with Disabilities Act
of 1990 (Public Law 101-336, 104 Stat. 327)[1] or similar federal or state standards regarding pedestrian
access or movement.
[1]
Editor's Note: See 42 U.S.C. § 12101 et seq.
(2)
The SWF fails to comply with applicable codes.
(3)
The SWF fails to comply with the requirements specified under
the Small Wireless Facilities Deployment Act.
(4)
The applicant fails to submit a report by a qualified engineering
expert which shows that the SWF will comply with applicable FCC regulations.
E.
The Township shall document the basis for a denial, including the
specific code provisions on which the denial was based, and send the
documentation to the applicant on or before the day the Township denies
an application. The applicant may cure the deficiencies identified
by the Township and resubmit the application within 30 days of receiving
the written basis for the denial without paying an additional application
fee. The Township shall approve or deny the revised application within
30 days. Any subsequent review shall be limited to the deficiencies
cited in the denial, unless the resubmitted application addresses
or changes other sections of the application that were not previously
denied, in which case the Township shall be given an additional 15
days to review the resubmitted application and may charge an additional
fee for the review.
F.
Permit Scope and Effect. Installation, modification, or co-locations
for which a permit is granted pursuant to this section shall be completed
within one year after the permit issuance date unless the Township
and the applicant agree to extend this period. Approval of an application
authorizes the applicant to:
(1)
Co-locate on an existing utility pole, modify, or replace a
utility pole or install a new utility pole with SWFs attached as identified
in the initial application.
(2)
Subject to the permit requirements and the applicant's
right to terminate at any time, operate and maintain SWFs and any
associated equipment on a utility pole covered by the permit for a
period of not less than five years, which shall be renewed for two
additional five-year periods if the applicant is in compliance with
the criteria set forth in the Small Wireless Facilities Deployment
Act and applicable codes, and the applicant has obtained all necessary
consent from the utility pole owners.
G.
Authority Granted; No Property Right or Other Interest Created. A
permit from the Township authorizes an applicant to undertake only
certain activities in accordance with this chapter and does not create
a property right or grant authority to the applicant to impinge upon
the rights of others who may already have an interest in the ROW.
H.
Design Criteria and Permit Review.
(1)
All SWF proposed under this chapter must meet the following
design criteria:
(a)
Height. The installation of an SWF on an existing utility pole
may not extend more than five feet above the existing utility pole;
if co-location on an existing utility pole cannot be achieved, the
maximum height permitted for the entire facility, including the utility
pole and SWF including antenna facilities, may not be taller than
50 feet. The Township Board of Supervisors may grant a waiver of this
height requirement subject to applicable code.
(b)
SWF Size. Each antenna associated with the deployment (excluding
the associated equipment) may be no more than three cubic feet in
volume; and all other equipment associated with the facility (excluding
antenna) are cumulatively no more than 28 cubic feet in volume.
(2)
General Design Requirements.
(a)
The Township may adopt by resolution small wireless facility
design guidelines with objective, technically feasible criteria applied
in a nondiscriminatory manner that reasonably match the aesthetics
and character of the immediate area.
(b)
The small wireless facility design guidelines may include examples
of SWF preferences including visual depictions (if readily available
and identified by the Township).
(c)
The provisions in this chapter shall not limit or prohibit the
Township's discretion to promulgate and make publicly available
other information, materials, or requirements in addition to, and
separate from, small wireless facility design guidelines so long as
the information, materials, or requirements do not conflict with federal
or state law.
(d)
All SWFs and associated equipment located within the public
right-of-way shall be located such that it meets ADA requirements
and does not hinder, obstruct, or impede usual pedestrian and vehicular
travel.
(e)
The Township shall have the authority to update or supplement
the small wireless facility design guidelines to address relevant
changes in law, technology, or administrative processes.
(3)
Wireless Support Structure Design Standards.
(a)
General Guidance.
1)
SWF equipment must be indistinguishable from the support pole
or structure to the greatest degree possible using matching colors,
textures, and materials. The antennas and related equipment shall
be in a color that will provide the most camouflage.
2)
All wires, antennas, and other small wireless facility equipment
shall be enclosed and not visible.
3)
Screening and equipment enclosures shall blend with or enhance
the surrounding context in terms of scale, form, texture, materials,
and color. Equipment shall be concealed as much as possible by blending
into the natural and/or physical environment.
4)
Casing to enclose wires, antennas, and other small wireless
facility equipment may be mounted on top of existing and new poles
in a cylinder shape to look like an extension of the pole.
5)
Signage of all SWF will be no larger than required to be legible
from street level. It may include contact information to be used by
workers on or near the SWF and as otherwise required by federal or
state law.
6)
As a condition for approval of new SWFs or new wireless support
structure in an historic district, the applicant shall comply, to
the greatest extent possible, with the design and aesthetic standards
of the historic district, or historic preservation standards in place
to minimize the negative impact to the aesthetics in these districts
or areas.
[Ord. No. 1080, 11/1/2022]
1.
Within 60 days of a suspension or revocation of a permit due to noncompliance
with applicable codes, the applicant shall remove the small wireless
facility and any associated equipment, including the utility pole
and any support structures if the applicant's wireless facilities
and associated equipment are the only facilities on the utility pole,
after receiving adequate notice and an opportunity to cure noncompliance.
Surety, in a form acceptable to the Township, shall be posted by the
applicant to cover the cost by the Township to remove the SWF and
associated equipment, should the applicant fail to comply.
2.
Within 90 days of the end of a permit term or an extension of the
permit term, the applicant shall remove the small wireless facility
and any associated equipment, including the utility pole and any support
structures if the applicant's wireless and associated equipment
are the only facilities on the utility pole. Surety, in a form acceptable
to the Township, shall be posted by the applicant to cover the cost
by the Township to remove the SWF and associated equipment, should
the applicant fail to comply.
[Ord. No. 1080, 11/1/2022]
Applicants are required to repair all damage directly caused
by the activities of the applicant and return the right-of-way in
as good of condition as it existed prior to any work being done. If
the applicant fails to make the repairs required by the Township within
30 days after written notice, the Township may perform those repairs
and charge the provider the reasonable, documented cost of the repairs
plus a penalty not to exceed $500. The Township may suspend the ability
of an applicant to receive a new permit from the Township until the
applicant has paid the amount assessed for the repair costs and the
assessed penalty.
[Ord. No. 1080, 11/1/2022]
Each person that owns or operates a non-tower WCF shall, at
its sole cost and expense, indemnify, defend and hold harmless the
Township, its elected and appointed officials, employees, and agents
at all times against any and all claims for personal injury, including
death, and property damage arising in whole or in part from, caused
by or connected with any act or omission of the person, its officers,
agents, employees, or contractors arising out of, but not limited
to, the construction, installation, operations, maintenance or removal
of the non-tower WCF. Each person that owns or operates a non-tower
WCF shall defend any actions or proceedings against the Township in
which it is claimed that personal injury, including death, or property
damage was caused by the construction, installation, operation, maintenance
or removal of a non-tower WCF. The obligation to indemnify, hold harmless
and defend shall include, but not be limited to, the obligation to
pay judgements, injuries, liabilities, damages, reasonable attorneys'
fees, reasonable expert fees, court costs and all other costs of indemnification.
[Ord. No. 1080, 11/1/2022]
Nothing in this Part shall be interpreted to relieve any individual
from compliance with all other ordinances, resolutions, laws, and
regulations of the Township.
[Ord. No. 1080, 11/1/2022]
The provisions of this Part are severable, and if any section,
sentence, clause, part, or provisions hereof shall be held illegal,
invalid, or unconstitutional by any court of competent jurisdiction,
such decision of the court shall not affect or impair the remaining
sections, sentences, clauses, or parts of this Part. It is hereby
declared to be the intent of the Township Board of Supervisors that
this Part would have been adopted if such illegal, invalid, or unconstitutional
sections, sentence, clause, part, or provisions had not been included
herein.
