[HISTORY: Adopted by the Mayor and Council
of the Borough of Alpha 3-8-2022 by Ord. No. 2022-04. Amendments noted
where applicable.]
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.
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
SMALL WIRELESS FACILITIES INFRASTRUCTURE
SMALL WIRELESS FACILITY
SMART POLE
UTILITY POLE
WIRELESS COMMUNICATIONS INFRASTRUCTURE
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:
As defined in 47 U.S.C. § 332(c)(7)(C), as supplemented
and/or as amended.
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.
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.
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.
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).
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.
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:
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.
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:
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.
This chapter shall take effective immediately upon final passage
and publication as provided by law.
