[HISTORY: Adopted by the Board of Commissioners of the Borough
of Avon-by-the-Sea 8-23-2021 by Ord. No. 27-2021. Amendments noted
where applicable.]
As used in this chapter, the following terms shall have the
meanings indicated:
Ministerial review of an application by the Borough to determine
whether the issuance of a permit is in conformity with the applicable
provisions of this chapter.
Communications equipment that transmits and/or receives electromagnetic
radio frequency signals used in the provision of wireless services.
This definition does not apply to broadcast antennas, antennas designed
for amateur radio use, or satellite dishes for residential or household
purposes.
Uniform building, fire, safety, electrical, plumbing, or
mechanical codes adopted by a recognized national code organization
to the extent such codes have been adopted by the Authority, including
any amendments adopted by the Authority, or otherwise are applicable
in the jurisdiction.
Any person or entity who submits an application under this
chapter, such as a provider described herein.
A written request, on a form provided by the Borough of Avon-by-the-Sea.
The Board of Commissioners of the Borough of Avon-by-the-Sea.
The term "Authority" and "Borough" are interchangeable.
To install or mount a small wireless facility in the public
right-of-way on an existing support structure, on an existing pole,
on a new pole, or smart pole. Collocation has a corresponding meaning.
Cable service, as defined in 47 U.S.C. § 522(6);
information service, as defined in 47 U.S.C. § 153(24);
or telecommunications service, as defined in 47 U.S.C. § 153(53).
A provider of communications services and includes a cable
operator as defined in 47 U.S.C. § 522(5).
The person appointed by the Borough to serve as the consultant
for the Borough for all matters concerning this chapter, and who may
be contracted for professional services.
A pole that is specially designed by the Authority and placed
for aesthetic purposes and employs stealth technology.
An eligible facilities request as set forth in 47 CFR 1.6100,
as that section may be amended from time to time.
The Federal Communications Commission of the United States.
Collectively, any and all federal, state or local law, statute,
common law, code, rule, regulation, order, or ordinance.
Inspections, testing and/or repair that maintain functional
capacity, aesthetic and structural integrity of a communications facility
and/or the associated support structure or pole, that does not require
blocking, damaging or disturbing any portion of the public ROW.
A written authorization to install, at a specified location(s)
in the public ROW, a communications facility or a pole to support
a communications facility.
An applicant that has received a permit under this chapter.
An individual, corporation, limited liability company, partnership,
association, trust or other entity or organization, including a governmental
entity.
A legally constructed pole, such as a utility, lighting or
similar pole made of wood, metal or other material as determined by
the Borough, located or to be located within the public right-of-way.
A pole does not include a support structure.
A communications service provider or a wireless services
provider, and includes any person that owns and/or operates within
the public ROW any communications facilities, wireless facilities,
poles built for the sole or primary purpose of supporting communications
facilities.
The area on, below, or above property that has been designated
for use as or is used for a public roadway, highway, street, sidewalk,
or similar purpose. The term does not include a federal interstate
highway, state highway, county right-of-way or other areas that are
not within the legal jurisdiction, ownership or control of the Authority.
In connection with an existing pole or support structure,
to replace (or the replacement of) same with a new structure, substantially
similar in design, size and scale to the existing structure and in
conformance with this chapter and any other applicable regulations
in order to address limitations of the existing structure to structurally
support collocation of a communications facility.
A wireless facility that meets both of the following qualifications:
A decorative 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
at least three (3) occupants and allow space for Borough use for other
services and/or equipment. Smart poles shall neither have protruding
latches, external hinges, nor external cabling. The pole must be made
of an inherently rust-resistant material (i.e., aluminum alloys or
stainless steel). The design of the smart pole is within the exclusive
discretion of Borough.
The State of New Jersey.
A structure in the public ROW other than a pole which is
capable of supporting a wireless facility.
The visual elements of a street, including the road, adjoining
buildings, street furniture, trees and open spaces, etc., that combine
to form the street's character.
The equipment at a fixed location or locations in the public
ROW that enables wireless services. The term does not include:
The support structure, tower or pole on, under, or within which
the equipment is located or collocated; or
Coaxial, fiber-optic or other cabling that is between communications
facilities or poles or that is otherwise not immediately adjacent
to or directly associated with a particular antenna.
A small wireless facility is one type of a wireless facility.
Throughout this chapter, the terms "communications facility," "wireless
facility" and "small wireless facility" may be used interchangeably
and shall be taken to refer to the same thing unless the context clearly
indicates otherwise.
Any wireless services using licensed or unlicensed spectrum,
whether at a fixed location or mobile, provided to the public.
Prior to installing in the public ROW any communications facility,
or any pole built for the sole or primary purpose of supporting a
communications facility, a person shall enter into a right-of-way
use agreement with the Borough of Avon-by-the-Sea expressly authorizing
use of the public right-of-way for the communications facility or
pole proposed to be installed.
A.
The term of the ROW use agreement shall be a minimum of 15 years
and shall not exceed 30 years.
B.
The ROW use agreement authorizes the provider's nonexclusive
use of the public ROW for the sole purpose of installing, maintaining
and operating communications facilities, including any pole built
for the sole or primary purpose of supporting the communications facilities
and to provide the services expressly authorized in the agreement
subject to applicable codes and applicable laws, this chapter and
the terms and conditions of the agreement. The agreement authorizes
use only of the public ROW in which the Borough has an actual interest.
It is not a warranty of title or interest in any public ROW and it
does not confer on the provider any interest in any particular location
within the public ROW No other right or authority is granted except
as expressly set forth in the ROW license agreement. Nothing herein
shall authorize the use of the Borough's poles or support structures,
in the public ROW, without express approval from the Borough. All
use of the Borough's poles or support structures in the public
ROW shall require a separate agreement and the payment of separate
fees for such use.
C.
The provider shall, at its sole cost and expense, keep and maintain
its communications facilities, poles, and support structures in the
public ROW in a safe condition, and in good order and repair.
D.
The provider shall provide insurance and indemnification of the Borough
as described in the ROW use agreement. The insurance coverage limits
must be at least as broad as follows:
(1)
Insurance. The provider shall at all times maintain a commercial
general liability insurance policy with a single amount of at least
one million dollars ($1,000,000.00) per occurrence and in the aggregate
covering liability for any death, personal injury, property damage
or other liability arising out of the construction and operation contemplated
herein, and an excess liability policy (or "umbrella" policy) in the
amount of five million dollars ($5,000,000.00) per occurrence and
in the aggregate. The provider may use any combination of primary
and excess insurance to meet the total limits required. Such coverage
shall be primary, noncontributory and shall contain a waiver of subrogation.
Evidence of same shall be provided prior to the commencement of any
work of any kind by the provider. Prior to the commencement of any
work pursuant to this chapter the provider shall file with the Borough,
a certificate(s) of insurance with any required endorsements evidencing
the coverage provided by said liability and excess liability policies.
The Borough shall notify provider within fifteen (15) days after the
receipt of any claim or demand to the Borough, either by suit or otherwise,
made against the Borough on account of any of provider or its subcontractors,
agents, employees, officers, servants, designees, guests and invitees,
activities pursuant to the rights granted in this chapter. Provider
shall notify the designee within fifteen (15) days of receipt of any
claim or demand of provider or its subcontractors, agents, employees,
officer, servants, designees, guests or invitees by any aggrieved
party for any work or action made pursuant to this chapter. The Borough
shall be named as an additional insured. Provider shall provide Borough
with renewal insurance.
(2)
Indemnification. Provider, its successors, assigns, contractors,
subcontractors, agents, servants, officers, professionals, employees,
designees, guests and invitees, hereby indemnify, defend and hold
harmless the Borough, its successors and assigns, elected officials,
officers, employees, servants, contractors, designees and invitees
from and against any and all personal injury and property damage claims,
demands, suits, actions at law or equity or otherwise, or related
judgments, arbitration determinations, damages, liabilities, decrees
of any person(s) or entities claiming to be or being harmed as a result
of provider's actions under this chapter and costs in connection
therewith except to the extent that such claims, demands, suits, or
actions are the result of the negligence or willful misconduct of
the county, its successors, assigns, elected officials, officers,
employees, servants, contractors, designees or invitees. This indemnification
shall specifically include, but not be limited to, any and all costs,
reasonable attorneys' fees, court costs and any other expenses
that may be incurred by the Borough in connection with any and all
claims, demands, suits, actions at law or equity or otherwise and/or
arbitration proceedings which may arise in connection with provider's
activities pursuant to the rights granted in this chapter. This indemnification
shall also specifically include that the Borough retains the right
to choose its own defense counsel in regard to any action at law or
equity pursuant to this section.
A.
No person may construct, maintain or perform any other work in the
public ROW related to communications facilities, poles built for the
sole or primary purpose of supporting communications facilities without
first receiving a permit to the extent required under this chapter,
and any subsequent permits or authorizations required by applicable
laws or the Authority.
B.
The Authority shall not issue a permit unless the applicant, or a
provider on whose behalf the applicant is constructing communications
facilities or poles, has applied for and received the ROW use agreement
required by this chapter, or otherwise has a current and valid franchise
with the Borough expressly authorizing use of the public ROW for the
communications facilities, poles or towers proposed in the application,
and all applicable fees have been paid.
C.
The provider shall not locate or maintain its communications facilities,
wireless facilities, support structure or poles so as to unreasonably
interfere with the use of the public ROW by the Borough, by the general
public or by other persons authorized to use or be present in or upon
the public ROW.
D.
The permitting process set forth herein may be revised, supplemented
or otherwise amended or replaced by resolution of Board of Commissioners.
E.
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.
A.
Height. No pole shall be taller than thirty-five (35) feet in height
including the antennas or 110% of the height of poles in the surrounding
streetscape, whichever is higher.
B.
Distance from curbline. No pole shall be farther than eighteen (18)
inches from the curbline.
C.
Location, safety and aesthetics. No pole shall be erected in the
right-of-way unless it:
(1)
Is replacing an existing pole;
(2)
Is approved by the Authority;
(3)
Is located within the Municipal right-of-way;
(4)
Is at least five hundred (500) linear feet from any other existing
pole or proposed pole, which is used to support a small wireless facility;
(6)
Does not inhibit any existing sight triangles;
(7)
Allows adequate room for the public to pass and repass across the
right-of-way; and
(8)
Is a smart pole along Ocean Avenue or Main Street.
D.
Applicant will comply with requests by the Authority to utilize stealth
technology smart pole and decorative poles when requested to preserve
the existing character and streetscape and minimize impact on surrounding
properties by causing the proposed pole and small cell to blend in
compatibly with their background. Smart pole and decorative pole must
accommodate at least three (3) carriers per small wireless facility
deployment.
E.
Any claim by applicant of technical incompatibility, inability to
use existing structure, or inability to collocate need to be proven
by the applicant, not disproved by Borough. Validity of said claims
by applicant is reserved within the sole discretion of Borough.
F.
The Authority may require new poles to be decorative poles if appropriate.
G.
Pole-mounted antennas are permitted on new and existing poles, provided
that each pole-mounted antenna:
(1)
Does not exceed three (3) cubic feet in volume; and
(2)
Is finished and/or painted and otherwise camouflaged, in conformance
with best available stealth technology methods, so as to blend in
compatibly with its background and so as to minimize its visual impact
on surrounding properties; and
(3)
Does not inhibit sight triangles; and
(4)
Allows adequate room for the public to pass and repass across the
municipal right-of-way.
H.
Pole-mounted cabinets are permitted on New and existing poles, provided
that each pole-mounted cabinet:
(1)
Does not exceed twenty-eight (28) cubic feet; and
(2)
Is finished and/or painted and otherwise camouflaged in conformance
with best available stealth technology methods so as to blend in compatibly
with its background and so as to minimize its visual impact on surrounding
properties; and
(3)
Does not inhibit sight triangles; and
(4)
Allows adequate room for the public to pass and repass across the
municipal right-of-way.
I.
No sign or artificial lighting shall be permitted on any pole, support
structure, or small wireless facility, including pole-mounted antennas
and cabinets and ground-mounted cabinets, unless said sign or artificial
lighting is required for safety or other reason by local, state or
federal regulation, or by the FCC, Federal Aviation Administration
(FAA) or other applicable authority with the capacity to promulgate
regulations regarding same.
J.
The Authority requires that an applicant provide a certification
from a licensed structural engineer attesting to the structural integrity
of any pole-mounted antenna or pole-mounted cabinet.
K.
Ground-mounted equipment is prohibited.
L.
All wireless equipment associated with the pole, including the wireless
equipment associated with the antenna and any preexisting associated
equipment shall not be more than twenty-eight (28) cubic feet in volume.
M.
The provider shall upon completion of construction provide the Borough
with as-built drawings and a map showing the location of the facility
and equipment.
N.
Fewest possible new poles. Applicant shall use existing poles when
possible for the placement of its small wireless facilities and shall
minimize the number of new proposed poles in the right-of-way to the
fewest possible to meet the coverage and capacity requirements.
O.
Fewest possible small wireless facilities. Applicant shall minimize
the number of new proposed small wireless facilities in the right-of-way
to the fewest possible to meet its coverage and capacity requirements
and, in furtherance of same, shall collocate on existing poles and
support structures whenever possible to minimize the number of required
new poles.
A.
The provider, or its agent or contractor, shall restore, repair and/or
replace any portion of the public ROW that is damaged or disturbed
by the provider's communications facilities, poles or work in
or adjacent to the public ROW.
B.
If the provider fails to timely restore, repair or replace the public
ROW as required in this subsection, the Authority or its contractor
may do so and the provider shall pay the Authority's costs and
expenses in completing the restoration, repair or replacement.
A.
Within 90 days following written notice from the Authority, the provider
shall, at its own expense, protect, support, temporarily or permanently
disconnect, remove, relocate, change or alter the position of any
of its communications facilities, poles or support structures within
the public ROW, including relocation of aboveground communications
facilities underground (consistent with the provisions of this chapter),
whenever the Borough has determined, in its sole discretion, that
such removal, relocation, change or alteration is necessary for the
construction, repair, maintenance or installation of any Borough improvement,
the operations of the Borough in, under or upon the public ROW, or
otherwise is in the public interest. The provider shall be responsible
to the Borough for any damages or penalties it may incur as a result
of the provider's failure to remove or relocate communications
facilities, poles or support structures as required in this subsection.
If removal or relocation is requested by the Borough, the Borough
will work in good faith to identify a suitable alternative site and
such removal or relocation shall not require an additional permit.
B.
The Borough retains the right and privilege to cut or move any communications
facility, pole or support structure located within the public ROW
of the Borough, as the Borough may determine, in its sole discretion,
to be necessary, appropriate or useful in response to any public emergency.
If circumstances permit, the Borough shall notify the provider and
give the provider an opportunity to move its own facilities prior
to cutting or removing the communications facility, pole or support
structure. In all cases, the Borough shall notify the provider after
cutting or removing the communications facility, pole or support structure
as promptly as reasonably possible. Emergency response shall be coordinated
between the Borough and provider to the extent practicable under the
circumstances.
C.
A provider shall notify the Borough of abandonment of any communications
facility, pole Support, or Structure at the time the decision to abandon
is made; however, in no case shall such notification be made later
than 30 days prior to abandonment. Following receipt of such notice,
the provider shall remove its communications facility, pole or support
structure at the provider's own expense, unless the Borough determines,
in its sole discretion, that the communications facility, pole or
support structure may be abandoned in place. The provider shall remain
solely responsible and liable for all of its communications facilities,
poles and support structures until they are removed from the public
ROW unless the Borough agrees in writing to take ownership of the
abandoned communications facilities, poles or support structures.
The provider shall remain liable for annual ROW occupancy fee for
balance of term.
D.
If the provider fails to timely protect, support, temporarily or
permanently disconnect, remove, relocate, change or alter any of its
communications facilities, poles or support structures or remove any
of its abandoned communications facilities, poles or support structures
as required in this section, the Borough or its contractor may do
so and the provider shall pay all costs and expenses related to such
work, including any delay damages or other damages the Borough incurs
arising from the delay.
A.
One-time fees and recurring rates. As consideration to the Borough
for entering into the right-of-way use agreement and also as a condition
precedent for the issuance of any required permit pursuant to this
chapter, the applicant shall pay the required one-time fees and recurring
rates as set forth in this section, and which may be amended or modified
from time to time per revision and modification to local, state and
federal laws and regulations. Said fees shall include application
or one-time fees and recurring right-of-way occupancy rates.
B.
Permit application escrow. A permit application escrow of $2,000
per new small wireless facility, including any new pole or support
structure, as applicable, and $1,000 per alteration, expansion, modification
to an existing small wireless facility or pole or support structure,
shall be submitted along with each application for a permit and held
in escrow to be billed against actual incurred costs. Any expenses
above the escrow shall be invoiced to applicant directly and shall
be paid by applicant prior to the issuance of any permit.
C.
Reasonable approximation. All one-time fees will be a reasonable
approximation of objectively reasonable costs.
D.
One-time fees apply to all work. One-time fees and event fees apply
to the initial installation of facilities as well as to any subsequent
upgrade, replacement, expansion, modification or alteration of same,
with each instance of an upgrade, expansion, alteration, modification
or repair being a separate project subject to a permit application
and one-time fees. Ordinary maintenance and repair does not trigger
any one-time fees.
E.
Consulting fee. Applicant shall be responsible for consulting and
professional fees which will be a reasonable reflection of objectively
reasonable costs, which shall be paid from permit application escrow.
F.
Annual ROW occupancy rate shall be $350 per annum, and shall be paid
within thirty (30) days of the issuance of the applicable permit and
annually thereafter, with payment being due on the anniversary of
the first payment date for the balance of the term. However, under
no circumstances shall the rate be remitted later than ninety (90)
days after the full execution of the applicable right-of-way use agreement
between Borough and applicant.
G.
Annual attachment rate, equal to an amount that represents a reasonable
approximation of the objectively reasonable costs incurred by the
Borough for the attachment of each small wireless facility to Borough-owned
structures in the public right-of-way. This amount shall be paid within
thirty (30) days of issuance of the applicable permit(s) and annually
thereafter. The annual rates in this subsection and the annual ROW
occupancy rate subsection combined shall not exceed $350 annually
per small wireless facility location.
H.
All fees and rates will be applied in a nondiscriminatory manner
to all communications service providers.
I.
Other fees. The applicant or provider shall be subject to any other
generally applicable fees of the Borough or other government body,
such as those required for electrical permits, building permits, or
street opening permits, which the applicant or provider shall pay
as required in the applicable laws, as well as attachment fees for
the use of the Borough-owned poles, support structures, ducts, conduits
or other structures in the public ROW, as set forth in attachment
agreements authorizing such use.
A.
Permit required. Pursuant to § 172-3A of this chapter, unless expressly authorized in this chapter or in writing by the Authority, no person may construct, install, modify, expand, alter or maintain in the public ROW any communications facilities, poles built for the sole or primary purpose of supporting communications facilities, including the installation or collocation of communications facilities on existing poles, support structures or other structures within the public ROW without first receiving a permit. Notwithstanding the foregoing, in the event of an emergency, a provider or its duly authorized representative may work in the public ROW prior to obtaining a permit, provided that the provider shall attempt to contact the Borough prior to commencing the work and shall apply for a permit as soon as reasonably possible, but not later than 24 hours, after commencing the emergency work. For purposes of this subsection, an "emergency" means a circumstance in which immediate repair to damaged or malfunctioning facilities is necessary to restore lost service or prevent immediate harm to persons or property.
B.
Permit application requirements. The application shall be made by
the provider or its duly authorized representative and shall contain
the following:
(1)
The applicant's name, address, telephone number, and email address,
including emergency contact information for the applicant.
(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 description of the proposed work and the purposes and intent of
the proposed communications facility, pole, support structure or wireless
facility (as applicable) sufficient to demonstrate compliance with
the provisions of this chapter.
(4)
If applicable, a copy of the authorization for use of the property
from the pole or support structure owner on or in which the communications
facility will be placed or attached.
(5)
Detailed construction drawings regarding the proposed communications
facility, pole, support structure or wireless facility (as applicable).
Construction drawings shall include, at minimum, a clear delineation
of the right-of-way, distance of the proposed communications facility,
pole or support structure from certain existing right-of-way features
such as curb ramps for handicap accessibility pursuant to the Americans
with Disabilities Act, sidewalk width and other details standard for
these types of telecommunications installations in the public right-of-way.
(6)
Prior to installation of communications facility, including but not
limited to collocation on a pole or support structure, a structural
report performed by a duly licensed engineer evidencing that the pole
or support structure will structurally support the communications
facility in accordance with applicable codes.
(7)
For any new aboveground facilities, accurate visual depictions or
representations.
(8)
The following additional permits, approvals and authorization, as
each is reasonably applicable to the proposed application:
(9)
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 the structure.
(10)
The application and permitting processes set forth herein may
be revised, supplemented or otherwise amended or replaced by resolution
of Board of Commissioners.
C.
Proprietary or confidential information in application. Applications
are public records that may be made publicly available pursuant to
the New Jersey Open Public Records Act.[1] Notwithstanding the foregoing, applicant may designate
portions of its application materials that it reasonably believes
contain proprietary or confidential information as "proprietary" or
"confidential" by clearly marking each portion of such materials accordingly,
and the Borough shall treat the information as propriety and confidential,
subject to the New Jersey Open Public Records Act and the Borough's
determination that the applicant's request for confidential or
proprietary treatment of application materials is reasonable. The
Borough shall not be required to incur any costs to protect the application
materials from disclosure, other than the Borough's routine procedures
for complying with the New Jersey Open Public Records Act.
[1]
Editor's Note: See N.J.S.A. 47:1A-1 et seq.
D.
Ordinary maintenance and repair. A permit shall not be required for
ordinary maintenance and repair. The provider or other person performing
the ordinary maintenance and repair shall obtain any other permits
required by applicable laws and shall notify the Borough in writing
at least 48 hours before performing the ordinary maintenance and repair.
Notwithstanding the foregoing, the Authority reserves the right to
inspect applicant's small wireless facilities at any time in
order to determine if the existing configuration matches the configuration
contained in the most recently issued permit, and the applicable right-of-way
use agreement. Applicant shall bear costs for said inspections. If
it is determined that an existing small wireless facility is found
to be larger than the dimensions specified in the most recently issued
applicable permit, then applicant shall be in violation of this chapter.
Applicant shall receive notice from the Borough and, upon receipt
of such notice, be required to restore the site within ten (10) days
to the configuration of the most recently approved permit or retroactively
apply for administrative approval for the unapproved modifications.
E.
Material changes. Unless otherwise agreed to in writing by the Authority,
any material changes to an application, as determined by the Authority
in its sole discretion, shall be considered a new application for
purposes of the time limits set forth in Chapter, unless otherwise
provided by applicable laws.
F.
Application fees. Unless otherwise provided by the applicable laws,
all applications pursuant to this chapter shall be accompanied by
the required fees, without which the application shall be deemed incomplete.
G.
Effect of permit. A permit from the Authority authorizes an applicant
to undertake only the activities in the public ROW specified in the
application and permit, and in accordance with this chapter and any
general conditions included in the permit. A permit does not authorize
attachment to or use of existing poles, towers, support structures
or other structures in the public ROW; a permittee or provider must
obtain all necessary approvals from the owner of any pole, tower,
support structure or other structure prior to any attachment or use.
A permit does not create a property right or grant authority to the
applicant to interfere with other existing uses of the public ROW.
H.
Duration. Any permit for construction issued under this chapter shall
be valid for a period of 365 days after issuance, provided that the
period may be extended for up to an additional 180 days upon written
request for the applicant (made prior to the end of the initial 365-day
period) if the failure to complete construction is as a result of
circumstances beyond the reasonable control of the applicant.
I.
Batch permit. An applicant may simultaneously submit no more than
twenty-five (25) applications for communications facilities, or may
file a single, consolidated application covering such communications
facilities, provided that the proposed communications facilities are
to be deployed on the same type of structure using similar equipment
and within an adjacent, related geographic area of the Borough. If
the applicant files a consolidated application, the applicant shall
pay the application fee calculated as though each communications facility
were a separate application.
A.
Preapplication meeting. Prior to making a formal application with
the Borough for use of the municipal right-of-way, all applicants
are advised to meet voluntarily with the Borough Administrator, Borough
Engineer and consultant to review the scope of the applicant's
proposal.
B.
All applications made under this chapter shall be processed as consistent
with the "shot clocks" set forth in the Federal Communications Commission
Order titled "Accelerating Wireless Broadband Deployment by Removing
Barriers to Infrastructure Investment; Accelerating Wireline Broadband
Deployment by the Removal of Barrier to Infrastructure Investment."
WT Docket No. 17-79; WC Docket No. 170-84.
C.
The Borough Administrator, Municipal Attorney and Municipal Engineer
and consultant shall review all applications for the placement of
new poles within the Municipal ROW and the placement of pole-mounted
antennas and pole-mounted cabinets within the Municipal ROW and advise
the Authority whether the application is complete and whether it meets
the requirements of this chapter.
D.
Except as otherwise provided by applicable laws, the Authority shall,
within thirty (30) days of receiving an application, notify the applicant
if the application is incomplete and identify the missing information.
The applicant may resubmit the completed application within ten (10)
days without additional charge, in which case the Authority shall
have thirty (30) days from receipt of the resubmitted application
to verify the application is complete, notify the applicant that the
application remains incomplete or, in the Borough's sole discretion,
deny the application.
E.
The Authority shall review the application and, if the application
conforms with applicable provisions of this chapter, the Authority
shall issue the permit, subject to the standard permit requirements
published by the Borough.
F.
The Authority shall make its final decision to approve or deny the
application within sixty (60) days for a collocation of a small wireless
facility to an existing structure, and ninety (90) days to deploy
a small wireless facility on a new structure, after the application
is complete (or deemed complete in the event the Borough does not
notify the applicant that the application or resubmitted application
is incomplete). Review of an application to deploy a facility other
than a small wireless facility using a new structure shall be decided
within 150 days.
G.
Waiver. The Authority may waive any siting standard set forth in
this chapter where the applicant demonstrates that strict enforcement
of said standard:
(1)
Will prohibit or have the effect of prohibiting any interstate or
intrastate telecommunications service pursuant to 47 U.S.C. § 253(a);
or
(2)
Will prohibit or have the effect of prohibiting personal wireless
service pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II); or
(3)
Will violate any requirement set forth by the Federal Communications
Commission Order entitled "Accelerating Wireless Broadband Deployment
by Removing Barriers to Infrastructure Investment; Accelerating Wireline
Broadband Deployment by the Removal of Barrier to Infrastructure Investment."
WT Docket No. 17-79; WC Docket No. 170-84.
H.
The Authority shall advise the applicant in writing of its final
decision.
Notwithstanding anything else in the Code of the Borough of
Avon-by-the-Sea, the installation of antennas, small cells and other
communication devices and associated equipment in the public municipal
roadway either on existing or new poles are permitted and considered
a permitted use if a right-of-way use agreement is entered into and
if right-of-way permits are obtained pursuant to this chapter.
This Chapter is intended to govern the installation, placement, maintenance, modification, upgrade and repair of communications facilities, including small wireless facilities, in the public right-of-way. The placement of telecommunications equipment outside of the public right-of-way shall be governed by the applicable codes and ordinances of the Borough, including the provisions of § 113-29E, Special conditions for wireless telecommunications towers and antennas.
A.
Any communications facilities in the public rights-of-way existing
at the time of the adoption of the provisions of this chapter, whether
or not a right-of-way use agreement exists or is in force and effect
with regard to same, shall be required to comply with the provisions
of this chapter.
B.
Any right-of-way use agreements entered into between the Borough
and any provider regarding communications facilities in the public
rights-of-way shall be required to conform to the provisions and standards
of this chapter. To the extent the provisions of any existing such
agreement conflict with this chapter, said provisions, at the discretion
of the Borough, shall be replaced and superseded by the applicable
terms of this chapter.
In addition to compliance with the applicable provisions of
this chapter, prior to the start of any installation of poles, support
structures, small wireless facilities or other communications facilities
that requires excavation, applicant shall contact New Jersey One Call
at 811 at least three (3) full business days prior to the commencement
of work.
Violation of any of the provisions of this chapter shall be
a simple citation punishable with a civil penalty of $500 for each
violation which continues more than ten (10) days after written notice
of such violation is provided to the person or applicant. Each day,
after such notice, that a violation occurs or is permitted to exist
by the person or applicant constitutes a separate offense.
