[Ord. 2021-3, 11/8/21]
This Article shall be known and may be cited as the Cornwall
Borough Small Wireless Facilities and Use of Public Street-Right-of-Way
Ordinance.
[Ord. 2021-3, 11/8/21]
Borough Council enacts this Article to govern use of public
street rights-of-way and municipal poles in accordance with and as
limited by Act 50 of 2021, the Small Wireless Facilities Deployment
Act. Borough Council recognizes the limitations of the Act on its
powers and desires to regulate the public street rights-of-way and
municipal poles to the maximum extent allowed by such Act. Borough
Council further desires to limit, to the extent legally permissible,
conflicts with other uses of the public street rights-of-way.
[Ord. 2021-3, 11/8/21]
1.
Word Usage.
In interpreting this Article, the singular shall include the plural,
and the masculine shall include the feminine and the neuter.
2.
ACT
ADA
BOROUGH
BOROUGH COUNCIL
CODE ENFORCEMENT OFFICER
FCC
UCC
Definitions.
All words and phrases not otherwise defined herein shall have the
meanings set forth in Section 2 of the Act.
The Small Wireless Facilities Deployment Act, the Act of
June 30, 2021, P.L. 232 No. 50, 53 P.S. §11704.1 et seq., and
as may be amended in the future.
The Federal Americans with Disabilities Act, as amended,
and all regulations adopted to implement such statute.
The Borough of Cornwall, Lebanon County, Pennsylvania.
The governing body of the Borough.
The person designated by Borough Council to administer this
Article.
The Federal Communications Commission or any agency successor
thereto. One Call - The Pennsylvania One Call Act,
the Act of December 10, 1974, P.L. 852, as amended, 73 P.S. §176
et seq., and all regulations adopted to implement such statute.
The Pennsylvania Uniform Construction Code, as adopted and
administered by this Borough.
[Ord. 2021-3, 11/8/21]
All persons who desire to install a small wireless facility
within a right-of-way, whether by co-location or by the installation
of a new utility pole, shall file an application in writing for a
permit with the Code Enforcement Officer. In order to be considered
a complete application, such application must include all of the following:
1.
A written
application form identifying in detail the name of the applicant and
contact information for the applicant and the name and contact information
of the person who prepared the application and whether applicant proposes
erection of a new utility pole or co-location on an existing utility
pole.
2.
Precise
location of all portions of the proposed small wireless facility,
including pole-mounted and ground-mounted small wireless facility
components.
3.
Identity
of the owner of the utility pole if the applicant proposes co-location
on an existing utility pole.
4.
A report
by a qualified engineering expert which shows that the small wireless
facility will comply with all applicable FCC regulations. The report
must identify the person who prepared the report and his or her qualifications.
5.
Construction
drawings and supplemental information demonstrating compliance with
Section 3 of the Act, the UCC (including as applicable a complete
UCC permit application) and this Article.
6.
Plan showing
the proposed small wireless facility installation sealed by a professional
engineer which shall contain a certification that after installation
of the facility any sidewalk, curb, or curb cuts which may be impacted
will comply with the ADA after installation of the small wireless
facility. The plan shall meet all of the following requirements and
include all of the following information:
A.
Existing
right-of-way width, sidewalk, curbing, and cartway with sufficient
information to demonstrate that the small wireless facility will be
located completely within the existing public street right-of-way
and will not interfere with the safe operation of traffic control
equipment, sight lines, or clear zones for vehicles or pedestrians.
B.
Location
of all storm water management facilities within the public street
right-of-way including swales, inlets, rain gardens, and pipes, with
sufficient information to demonstrate that the small wireless facility
will be located and installed in a manner that will not interfere
with existing storm water management facilities.
C.
Location
of all utility facilities within the public street right-of-way including
but not limited to public water and sewer facilities, including all
hydrants and manholes with sufficient information to demonstrate that
the small wireless facility will be located and installed in a manner
that will not interfere with existing utility facilities.
D.
Location
of any driveway, mailbox, or utility serving the abutting property.
7.
Where
the application proposes co-location on an existing utility pole which
is not a municipal pole, written permission from the owner of the
existing utility pole.
8.
Where
the application proposes installation of a new utility pole, a self-certification
that the applicant has determined in good faith that it cannot meet
its service reliability and functional objectives of the application
by co-locating on an existing utility pole or municipal pole. This
self-certification shall include documentation of the basis of the
determination which shall identify all existing utility poles and
municipal poles in the vicinity and why they arc not suitable.
9.
Where
a new pole or excavation for any reason is proposed, an application
for a street opening permit meeting all requirements of Article 1
of this Chapter with street opening permit fee and evidence of compliance
with One Call.
10.
The
fee established by this Article.
[Ord. 2021-3, 11/8/21]
All applications shall be submitted to the Borough office on
a day that the Borough office is open to the public and during hours
that the office is open to the public. Applications received within
one hour of close of business shall be considered filed on the next
day that the Borough office is open for business.
[Ord. 2021-3, 11/8/21]
The Code Enforcement Officer shall review the application for
completion within the time periods required by the Act and, if incomplete,
shall notify the applicant in accordance with the Act. The Code Enforcement
Officer shall review and act upon the application in accordance with
the Act.
1.
If the
application meets all requirements of the Act and this Article, the
Code Enforcement Officer shall issue a permit to authorize installation
of the small wireless facility and an invoice for the right-of-way
fee for the small wireless facility.
2.
The proposed
collocation, the modification or replacement of a utility pole or
the installation of a new utility pole with small wireless facilities
attached for which a permit is granted under this Article shall be
completed within one year of the permit issuance date.
3.
Subject
to the permit requirements and the wireless provider’s right
to terminate at any time, the permit shall grant the wireless provider
authorization to operate and maintain small wireless facilities and
any associated equipment on the utility pole covered by the permit
for a period of five years, which shall be renewed for two additional
five-year periods if the permit holder is in compliance with the criteria
set forth in this Article and the Act and the permit holder has obtained
all necessary consent from the utility pole owner.
[Ord. 2021-3, 11/8/21]
All small wireless facilities to be installed and maintained
within the right-of-way shall meet all of the following requirements:
1.
The small
wireless facility and all associated equipment shall meet the size
limits and height limits of the Act.
2.
The small
wireless facility shall be located so as not to cause any physical
or visual obstruction to pedestrian or vehicular traffic, or to otherwise
create safety hazards to pedestrians and/or motorists or to otherwise
inconvenience public use of the right-ofway. This shall include, but
not be limited to, any interference with compliance with the ADA.
3.
A new
pole shall not be located within 10 feet of an existing driveway or
street intersection. A new pole shall not be located within any storm
water management facility including, but not limited to, any swale
or rain garden. A new pole shall not be located within 18 inches of
the face of the curb.
4.
All equipment
of the small wireless facility which is mounted on a pole shall have
a clearance of not less than 18 feet if located over a cartway and
not less than 10 feet if not located over a cartway.
5.
Ground-mounted
accessory equipment, walls, or landscaping shall not be located within
any storm water management facility including, but not limited to,
any swale or rain garden or within 18 inches of the face of the curb.
6.
A new
pole or ground-mounted accessory equipment, walls or landscaping shall
not be located on an easement extending onto the lot adjoining the
right-of-way without the written permission of the easement holder.
7.
Ground-mounted
accessory equipment that cannot be placed underground shall be screened,
to the fullest extent possible, through the use of landscaping or
other decorative features. Any required electrical meter cabinets
shall be screened to blend in with the surrounding area. Ground-mounted
accessory equipment shall not interfere with access to any driveway
or mailbox.
8.
All underground
facilities shall be designed and installed in a manner which will
not require the removal or relocation of any storm water management
facility or underground utility.
[Ord. 2021-3, 11/8/21]
The wireless provider shall maintain the small wireless facility
in a manner that meets or exceeds all of the design standards of this
Article and all standards of the UCC. If the small wireless facility
is the only facility on a pole, the wireless provider shall maintain
the pole in accordance with this Article and all applicable requirements.
The wireless provider shall remove any graffiti on the small wireless
facility, including but not limited to ground-mounted accessory equipment,
within 30 days' after notice from the Borough to do so.
[Ord. 2021-3, 11/8/21]
1.
A wireless
provider shall repair all damage to the right-of-way or any other
land so disturbed, directly caused by the activities of the wireless
provider or the wireless provider’s contractors, including installation
of the small wireless facility or the failure to properly maintain
the small wireless facility, and return the right-of-way in as good
of condition as it existed prior to any work being done in the right-of-way
by the wireless provider or damage resulting from the failure to maintain
the small wireless facility. If the wireless provider fails to make
the repairs required by the Borough within 30 days' after written
notice, the Borough may perform those repairs and charge the wireless
provider the reasonable, documented cost of the repairs plus a penalty
of $500. The wireless provider who has failed to make the required
repairs shall not be eligible to receive a new permit from the Borough
until the wireless provider has paid the amount assessed for the repair
costs and the assessed penalty or deposited the amount assessed for
the repair costs and the assessed penalty in escrow pending an adjudication
of the merits of the dispute by a court of competent jurisdiction.
2.
A wireless
provider shall fully indemnify and hold the Borough and its officers,
employees and agents harmless against any claims, lawsuits, judgments,
costs, liens, expenses or fees or any other damages caused by the
act, error or omission of the wireless provider or its officers, agents,
employees, directors, contractors or subcontractors while installing,
repairing or maintaining small wireless facilities or utility poles
within the right-of-way.
[Ord. 2021-3, 11/8/21]
In accordance with Section 3(c) of the Act, the Borough hereby
imposes an annual fee for the use of right-of-way in the amount of
$270 per small wireless facility or $270 per new utility pole with
a small wireless facility. The annual fee shall become effective beginning
on January 1, 2022, and shall be imposed for each calendar year or
portion thereof during which a small wireless facility is located
in a right-of-way. The owner of each small wireless facility installed
within the Borough shall be responsible to pay such right-of-way fee
whether or not such provider receives an invoice from the Borough.
The fee will be due by January 31 of the calendar year for the calendar
year to which the fee relates.
1.
The failure
to pay the annual right-of-way fee shall be a violation of this Article
and shall be subject to the penalties and remedies in this Article.
2.
If the
annual right-of-way fee is not paid in full by January 31 of the calendar
year, a penalty of 10% of the annual fee shall be added. If the annual
fee plus penalty is not paid in full by March 31 of the calendar year,
interest at the rate of 1% per month shall continue until the annual
right-of-way fee, penalty, and interest are paid in full.
3.
The annual
fee shall be adjusted upward by resolution of Borough Council if authorized
by Section 7(c) of the Act.
4.
The owner
of each small wireless facility installed within a right-of-way on
the effective date of the ordinance codified in this Article shall
provide the Borough with a report identifying each existing small
wireless facility identifying the location of such small wireless
facility, the dimensions of such small wireless facility, and the
date of installation of the small wireless facility. This report shall
include the name and contact information for the owner of the small
wireless facilities, including the address to send invoices for the
annual right-of-way fee and any notices under this Article.
5.
The owner
of each small wireless facility shall provide the Borough with up-todate
contact information. If ownership of a small wireless facility changes,
the new owner of the small wireless facility shall provide notice
and new contact information to the Borough within 30 days.
[Ord. 2021-3, 11/8/21]
1.
An applicant
for a permit to install a small wireless facility shall include the
following fees with its application:
A.
For an
application seeking approval for between one and five co-located small
wireless facilities: $500.
B.
For an
application seeking approval of more than five co-located small wireless
facilities: $500 plus $100 for each co-located small wireless facility
beyond five.
C.
For an
application seeking approval of a small wireless facility that requires
the installation of a new or replacement utility pole: $1,000.
D.
The fees
established by this Section shall be adjusted upward by resolution
of Borough Council if authorized by Section 7(c) of the Act.
[Ord. 2021-3, 11/8/21]
1.
Within
60 days of suspension or revocation of a permit due to noncompliance
with this Article or the Act, the permit holder shall remove the small
wireless facility and any associated equipment, including the utility
pole and any support structures if the permit holder’s wireless
facilities and associated equipment are the only facilities on the
utility pole, after receiving adequate notice and an opportunity to
cure any noncompliance.
2.
Within
90 days of the end of a permit term or an extension of the permit
term, the permit holder shall remove the small wireless facility and
any associated equipment, including the utility pole and any support
structures if the permit holder’s wireless facilities and associated
equipment are the only facilities on the utility pole.
3.
A wireless
provider which elects to discontinue the use of a small wireless facility
shall notify the Borough in writing not less than 45 days prior to
the discontinuance of use of the small wireless facility, which notice
shall specify when and how the wireless provider will remove the small
wireless facility and, if applicable, the pole. The wireless provider
shall complete the removal within 45 days of the discontinuance of
the use of the small wireless facility. A permit issued under this
Article for a small wireless facility which is voluntarily removed
shall expire upon the removal of the small wireless facility.
[Ord. 2021-3, 11/8/21]
1.
Violations.
It shall be a violation of this Article to do or permit the following:
A.
To install
a small wireless facility prior to obtaining the permit required by
this Article.
B.
To install
a small wireless facility in a manner other than that authorized by
the permit.
C.
To place
any false or misleading information on an application including, but
not limited to, incorrectly identifying the right-of-way width, the
identity of the owner of a utility pole, the precise location of the
utility pole, or the size and location of any proposed or existing
equipment.
D.
To fail
to make any payment required by this Article or to make a payment
by a means which is later dishonored.
E.
To violate
any other provision of this Article.
2.
Penalties.
Any person who violates or permits the violation of any provision
of this Article shall be liable upon summary conviction therefor to
fines and penalties of not less than $100 nor more than $1,000 plus
all costs of prosecution, including attorneys’ fees, which costs,
fines, and penalties may be collected as provided by law. Each day
that a violation continues and each Section of this Article which
is violated constitutes a separate violation.
