[HISTORY: Adopted by the Mayor and Council of the Borough of Alpha 3-8-2022 by Ord. No. 2022-04. Amendments noted where applicable.]
ATTACHMENTS
Attachment 1 - Appendix A - Right-of-Way Use Agreement
A. 
All definitions of words, terms and phrases that are set forth in the Communications Act of 1934, P.L. 73-416, as amended by various statutory enactments, including, but not limited to, the Telecommunications Act of 1996, P.L. 104-104, are incorporated herein and are made a part hereof.
B. 
All definitions of words, terms and phrases that are set forth in the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et. seq., are incorporated herein and are made a part hereof.
C. 
All of the definitions of words, terms and phrases that are set forth in the Code of Federal Regulations at 47 CFR 1.6002, as amended, are incorporated herein and are made a part hereof.
D. 
In addition to the foregoing, the following words, terms and phrases shall have the meanings indicated unless an alternate meaning clearly is discernable from the context in which the word, term or phrase is used:
PERSONAL WIRELESS SERVICES
As defined in 47 U.S.C. § 332(c)(7)(C), as supplemented and/or as amended.
PUBLIC RIGHT-OF-WAY
The surface, the airspace 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 by the Borough of Alpha within an easement to the public or other easement owned by the Borough of Alpha.
SMALL WIRELESS FACILITIES INFRASTRUCTURE
A smart pole meeting the above definition or other co-locatable infrastructure designed or deployed for the purpose of supporting small wireless facilities, the types of which may be approved by geographical zones as defined by the Borough of Alpha.
SMALL WIRELESS FACILITY
As defined in the Code of Federal Regulations at 47 CFR 1.60002(l), as supplemented and/or as amended; a wireless facility that meets both of the following qualifications: i) each antenna is located inside an enclosure of no more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and ii) all other wireless equipment attached directly to a utility pole associated with the facility is cumulatively no more than 25 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.
SMART POLE
A decorative utility pole that conceals, disguises or camouflages one or more small wireless facility installation(s) and may include other features such as street lighting, 911 call service access, public access Wi-Fi and surveillance cameras. A smart pole must allow for multiple occupants and allow space for municipal use for other services and/or equipment. Smart poles shall neither have external latches, external hinges, nor external cabling. The pole should be made of an inherently rust-resistant material (i.e., aluminum alloys or stainless steel).
UTILITY POLE
A wooden or metal pole that is used by public utilities to support electrical wires, telephone wires, coaxial cables, fiber optic cables and like and similar appurtenances.
WIRELESS COMMUNICATIONS INFRASTRUCTURE
Infrastructure designed specifically for the purpose of supporting wireless facility equipment deployments, including large-scale (macro) co-locatable infrastructure as well as small wireless facilities infrastructure.
E. 
In the event that a term, word or phrase is not defined in any of the aforementioned statutes and is not otherwise defined herein, then that term, word or phrase shall have its common, ordinary meaning.
A. 
No person shall place a small wireless facility in any right-of-way without first filing a small wireless facility siting permit application, in the form specified herein and in accordance with the procedures specified herein, with the Borough of Alpha Clerk and obtaining a siting permit therefor, except as otherwise may be provided in this chapter. Upon approval of a siting permit application, the siting permit authorizing placement of a small wireless facility in a public right-of-way shall not be issued by the Borough of Alpha Clerk to any applicant unless:
(1) 
All siting permit application fees and escrow fees, as established herein, have been paid;
(2) 
All other governmental permits or other governmental approvals that are required for the deployment(s) proposed by the applicant's siting permit application under the New Jersey Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq., and the administrative regulations adopted thereunder, Chapter 346, Article III, of the Code of the Borough of Alpha, and by any other applicable federal, state or municipal law have been issued by the appropriate issuing authority therefor to the applicant and the applicant has supplied copies of such other permits or approvals to the Borough of Alpha Clerk for inclusion with the applicant's application documents; and
(3) 
The applicant has entered into a right-of-way use agreement, the approved form of which is set forth in Appendix A to this chapter,[1] with the Borough of Alpha. The approved form of right-of-way use agreement may from time to time be revised, supplemented or otherwise amended or replaced. All such revisions, supplements, amendments or replacements shall be approved by resolution of Borough of Alpha Council. The Borough of Alpha Clerk shall maintain on file the currently approved right-of-way use agreement version and shall provide a copy to all siting permit applicants. Minor deviations to the terms and conditions that are set forth in the approved form of right-of-way use agreement may be approved by Borough of Alpha Council at the time that it grants consent to use a right-of-way to a siting permit applicant.
[1]
Editor's Note: Said agreement is included as an attachment to this chapter.
B. 
No siting permit authorizing placement of a small wireless facility in a public right-of-way shall be issued to any applicant unless Borough of Alpha Council, in the manner prescribed by applicable laws of the State of New Jersey, has granted to the siting permit applicant its consent to use public rights-of-way within the Borough of Alpha. No siting of a small wireless facility shall be permitted within 500 feet of another small wireless facility unless it can be established by clear and convincing evidence that co-location on an existing or previously approved small wireless facility is not feasible. Any claims of applicants of technical incompatibility or inability to co-locate need to be demonstrated scientifically by the applicant, not disproven by the Borough of Alpha. Responsibility for judging proof of said claims lies solely with the Borough of Alpha and/or its chosen representative(s).
A. 
No application for a small wireless facility siting permit shall be approved if the application proposes the deployment of a small wireless facility upon an existing structure in a right-of-way unless the structure is one of the types of smart poles that are set forth in § 220-1, Definitions, of this chapter and such smart pole specifically is designed to accommodate the reasonable and customary equipment necessary for a small wireless facility installation which will accommodate at least three applicants per small wireless facility deployment. Any exception to this requirement must be accompanied by clear and convincing evidence that co-location on an existing or previously approved small wireless facility is not feasible. Any claims of applicants of technical incompatibility or inability to co-locate need to be demonstrated scientifically by the applicant, not disproven by the Borough of Alpha. Responsibility for judging proof of said claims lies solely with the Borough of Alpha and/or its chosen representative(s).
B. 
No small wireless facility shall be installed upon any new structure within any right-of-way unless the new structure is one of the preapproved types of smart poles that are identified in § 220-1, Definitions, of this chapter. A replacement pole is a new structure.
C. 
No application for a small wireless facility siting permit shall be approved if the application proposes the deployment of a small wireless facility in an area other than those specific locations set forth within the Borough's wireless siting plan, which can be found on file with the office of the Borough Clerk. All small wireless facilities must be placed within a twenty-five-foot radius of those specific locations set forth on the Borough's wireless siting plan. No more than one smart pole shall be permitted per intersection or block if the siting plan calls for the deployment of a small wireless facility at any location other than an intersection, unless otherwise specified within the wireless siting plan. No smart pole shall be located within 200 feet of another.
A. 
Application filing. An application for a siting permit to place one or more Small wireless facilities within a right-of-way shall be made on forms which shall be available from the office of the Borough of Alpha Clerk. The application, along with the required application fee and the required escrow fee, shall be filed with the Borough of Alpha Clerk. Immediately upon receipt of an application, the Borough of Alpha Clerk shall provide copies of the application and all supporting documents that were submitted by the applicant with the application to the Borough of Alpha Engineer, the Construction Official and the Borough of Alpha Solicitor.
B. 
Application form. The small wireless facility siting permit application shall be made by a provider of personal wireless services, or its duly authorized representative as noted in a notarized statement from the provider of personal wireless services on whose behalf the representative is acting, and shall contain the following:
(1) 
The applicant's name, address, telephone number and email address;
(2) 
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;
(3) 
A general description of the proposed small wireless facility, existing structure and new structure work to be performed. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with particular emphasis on those matters, including, but not limited to, subsurface utilities likely to be affected or impacted by the work proposed along with a description of such other governmental permits or approvals as may be required by applicable law with respect to the proposed installation(s) and a description of such other permits or approvals for which the applicant has applied;
(4) 
Authorization for any consultant acting on behalf of the applicant to speak with the Borough of Alpha, or a designee of the Borough of Alpha, on the area of consultation for the applicant even if the applicant cannot be available;
(5) 
Verification from an appropriate professional that the small wireless facility shall comply with all applicable federal, state and local laws, administrative regulations and codes;
(6) 
The applicant shall certify that they shall market the availability of approved facilities to all major wireless carriers in the marketplace. The applicant shall further certify that they will encourage, manage and coordinate the location and placement of any interested carrier's equipment on their structure.
C. 
An applicant seeking to deploy a network of small wireless facilities, all of which are to be located in rights-of-way, may file a batched application for up to 25 small wireless facilities and receive a single siting permit for multiple small wireless facilities.
A. 
The Borough of Alpha shall review the application for a small wireless facility siting permit in light of its conformity with the provisions of this chapter, and shall approve a siting permit on nondiscriminatory terms and conditions subject to the following requirements:
(1) 
Within 10 days of receiving an application, the Borough of Alpha Clerk shall determine and notify the applicant:
(a) 
Whether the application is complete;
(b) 
If the application is incomplete, what specific information is missing; and
(c) 
Whether the deployment of the small wireless facilities as proposed requires the applicant to apply for other permits, such as a street opening permit or construction permit, for which the applicant has not yet applied. No small wireless facility siting permit application shall be deemed complete until the applicant has applied for all other permits and approvals required by all other laws and regulations that are applicable to the applicant's proposed small wireless facility deployment.
B. 
Time frames for approval.
(1) 
The Borough of Alpha shall make its final decision to approve or deny the application within the following time frames:
(a) 
Sixty days from the submission of a complete application to install a small wireless facility upon one or more existing structures.
(b) 
Ninety days from the submission of a complete application to install a small wireless facility upon one or more new structures.
(c) 
Ninety days from the submission of a complete batched application to install small wireless facilities upon both existing and new structures.
(2) 
The time frames described above by which an application shall be either approved or denied may be extended by mutual consent of the applicant and the Borough of Alpha. Such consent shall be set forth on a form for such purposes which shall be available from the office of the Borough of Alpha Clerk. Such consent on behalf of the Borough of Alpha shall be exercised by the Mayor in his/her reasonable discretion.
C. 
The Borough of Alpha Clerk shall notify the applicant in writing of the final decision and if the application is denied specify the basis for denial and cite such specific provisions, as may be recommended by the Borough of Alpha Solicitor, from federal, state, or local laws, administrative regulations or codes as to why the application was denied.
D. 
Notwithstanding an initial denial, the applicant may cure any deficiencies identified by the Borough of Alpha within 30 days of the denial without paying an additional application fee, provided the Borough of Alpha Clerk shall approve or deny the revised application within 30 days of receipt of the amended application which shall be limited to the deficiencies specified in the original notice of denial.
E. 
If the Borough of Alpha fails to act upon an application within the time frames prescribed by this section, the applicant may provide written notice to the Borough of Alpha that the application review and decision period has lapsed. Upon receipt of such notice, Borough of Alpha Council, by resolution adopted no later than its second regularly scheduled public meeting next following receipt of the notice, shall either deny the application or direct that the siting permit shall be approved and issued. Nothing in this subsection is intended in any way to impact any other right or remedy that may be available to the applicant under applicable federal or state law if the Borough of Alpha fails to act upon an application within the time frames prescribed by this section.
F. 
A siting permit from the Borough of Alpha authorizes an applicant to undertake only certain activities in accordance with this chapter. No approval or consent granted, or siting permit issued, pursuant to this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use any public right-of-way within the Borough of Alpha for the delivery of telecommunications services or for any other purpose.
No siting permit issued under this chapter shall be valid for a period longer than 12 months unless construction has actually begun and continuously and diligently is pursued to completion. Upon written request from the applicant, the Mayor, upon consultation with the Construction Official, may extend the siting permit for a period of up to 12 months so long as construction has begun at the time that the applicant's request for an extension is made.
A. 
A small wireless facility siting permit shall not be required for:
(1) 
Routine maintenance of a small wireless facility.
(2) 
The replacement of a small wireless facility with another small wireless facility that is the same or smaller in size, weight and height to the small wireless facility that is being replaced.
B. 
Provided, however, that on a location where the Borough of Alpha and/or another provider has placed equipment or facilities, any routine maintenance or replacement that is done shall not occur until written authorization from the Borough of Alpha and/or the other provider, as the case may be, to proceed is provided to the Borough of Alpha, which authorization to proceed shall not unreasonably be withheld by the Borough of Alpha and/or the other provider.
C. 
Provided further that if the replacement of a small wireless facility with another small wireless facility includes replacement of the structure to which the small wireless facility is attached, then an application for a siting permit shall be required.
D. 
Notwithstanding anything to the contrary in this § 220-7, permits are required for any activity that involves any road closure or other activity that will impact vehicle or pedestrian traffic.
A. 
Application fees. All applications for approval and issuance of a small wireless facility siting permit pursuant to this chapter shall be accompanied by a fee as follows:
(1) 
For applications that do not include the installation of any new structures within a right-of-way, the application fee shall be $500 for up to five small wireless facilities with an additional $100 for each small wireless facility beyond five.
(2) 
For applications that include the installation of a new structure within a right-of-way, the application fee shall be $1,000 for up to five small wireless facilities with an additional $100 for each small wireless facility beyond five.
B. 
Other fees: No pole attachment fees will be assessed by the Borough unless and until an applicant applies for pole attachment to a Borough-owned pole.
C. 
Annual rate: $270 annual ROW maintenance rate per pole, starting on the anniversary of the permit.
A. 
In addition to the application fee, all applications for approval and issuance of a small wireless facility siting permit shall be accompanied by an escrow fee as follows:
(1) 
For applications whose proposed small wireless facility deployment(s) will not require a street opening permit pursuant to Chapter 346, Article III, of the Code of the Borough of Alpha: $5,000.
(2) 
For applications whose proposed small wireless facility deployment(s) will require a street opening permit pursuant to the Code of the Borough of Alpha: $7,500.
B. 
The escrow account deposits are required to pay for the costs of professional services, including engineering, planning, legal and other third-party professional consulting expenses connected with the review of submitted materials, including any traffic engineering review or other special analyses related to the Borough of Alpha's review of the materials submitted by the applicant and the preparation of any reports or any necessary legal agreement regarding rights-of-way use. An applicant is required to reimburse the Borough of Alpha for all fees, costs and expenses of third-party professionals and consultants incurred and paid by the Borough of Alpha for the review process of a small wireless facility siting permit application, such as, but not limited to:
(1) 
Professional fees for reviews by third-party professionals or consultants of applications, plans and accompanying documents;
(2) 
Issuance of reports or analyses by third-party professionals or consultants to the Borough of Alpha setting forth recommendations resulting from the review of any documents submitted by the applicant;
(3) 
Charges for any telephone conference(s) or meeting(s), including travel expenses, requested or initiated by the applicant, the applicant's attorney or any of the applicant's experts or representatives;
(4) 
Review of additional documents submitted by the applicant and issuance of reports or analyses relating thereto;
(5) 
Review or preparation of right-of-way use agreements, easements, deeds, right-of-way municipal consent ordinances or resolutions and any and all other like or similar documents; and
(6) 
Preparation for and attendance at all meetings by third-party professionals or consultants serving the Borough of Alpha, such as the Borough of Alpha Attorney, Borough of Alpha Engineer and Borough of Alpha Planner or other experts as required.
C. 
The escrow account deposits shall be placed in a separate account by the Borough of Alpha's Chief Financial Officer at the request of the Borough of Alpha Clerk, and an accounting shall be kept of each applicant's deposit. Thereafter:
(1) 
All third-party professional or consultant fees, costs, expenses and charges shall be paid from the escrow account and charged to the applicant.
(a) 
Third-party professional or consultant fees shall not be disbursed from escrow if they are for a service performed in the context of an identical paid service between the applicant and the same third party who may otherwise be entitled to said fees;
(2) 
Upon either final denial of a small wireless facility siting permit application or upon issuance of a small wireless facility siting permit, any moneys not expended for third-party professional or consulting services shall be returned to the applicant within 90 days upon written request by the applicant and as authorized by the Borough of Alpha Council;
(3) 
If at any time during the application review process 75% of the money originally posted shall have been expended, the applicant shall be required to replenish the escrow deposit to 100% of the amount originally deposited by the applicant;
(4) 
No small wireless facility siting permit application shall be considered complete until such time as the required escrow fee has been posted to guarantee payment of third-party professional or consultant fees, costs, expenses and charges;
(5) 
All payments charged to the escrow deposit shall be pursuant to vouchers from the third-party professionals or consultants stating the hours spent, the hourly rate and the fees, costs, expenses and charges incurred;
(6) 
Third-party professionals and consultants submitting charges pursuant to this section shall be permitted to charge for such services at the same rates as they would charge their private clients for like or similar work, provided that:
(a) 
Professional fees are billed at rates that do not exceed such professional fees as are customarily charged by other like professionals and consultants performing similar work within the county; and
(b) 
Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar basis with no markup being permitted;
(7) 
The Borough of Alpha shall render a written final accounting to the applicant on the uses to which the escrow deposit was put. The written final accounting shall include copies of all vouchers that were submitted by third-party professionals and consultants and paid by the Borough of Alpha.
An applicant whose siting permit includes the installation of any new smart pole structure of any of the types that are defined in § 220-1, Definitions, of this chapter shall provide the Borough of Alpha with access to space within the smart pole structure for the purpose of deploying Borough of Alpha's own equipment, including, but not limited to, public access Wi-Fi, 911 call service or security cameras. Notwithstanding the foregoing, the municipal use shall not interfere with small wireless facilities of any other users of that smart pole. Any municipal use pursuant to this section shall include a reimbursement to the applicant, on an annual basis, of the costs, on a dollar-for-dollar basis, of providing the Borough of Alpha with such access. Such costs shall be limited to the costs of providing electricity to the components used by the Borough of Alpha and the costs of any repairs required to be made to the components used by the Borough of Alpha, unless the repair costs are necessitated by the acts of the applicant or subsequent owner of the structure, without regard to whether such acts are negligent or intentional.
All ordinances or parts of ordinances inconsistent with this chapter, to the extent of such inconsistencies only, be and the same hereby are repealed.
Notwithstanding any provision to the contrary, nothing in this chapter should be interpreted to have the effect of prohibiting or effectively prohibiting the deployment of broadband or other communications services.