Editor's Note: Former Ch. 43, Small Cell Equipment and Wireless
Poles in Public Right-Of-Way, was repealed 6-27-2023 by Ord. No. 2023-09.
Prior history includes Ord. No. 2019-20 and Ord. No. 2020-02.
[Added 6-27-2023 by Ord.
No. 2023-09]
Unless indicated otherwise in this chapter, the meanings of
terms used herein shall be as follows:
Ministerial review of an application by the Designee and
Borough Engineer, as preferred 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 Borough, including
any amendments adopted by the Borough, or otherwise are applicable
in the jurisdiction.
Any person or entity who submits an application under this
chapter. A Provider or a Communications Service Provider, as the term
is defined herein, are examples of a typical Applicant under the provisions
of this chapter.
A written request on a form provided by the Borough.
To install or mount a small wireless facility in the public
Right-of-Way on an existing support structure, an existing tower,
or on an existing pole to which a small wireless facility is attached
at the time of the application.
Collectively, the equipment at a fixed location or locations
within the public Right-of-Way that enables communications services,
including; (i) radio transceivers, antennas, coaxial, fiber-optic
or other cabling, power supply (including backup battery), and comparable
equipment, regardless of technological configuration; and (ii) all
other equipment associated with any of the foregoing. A communications
facility does not include the pole, communication wiring (in the case
of Strand Mounted Antennas, as the term is defined herein), tower
or support structure to which the equipment is attached. A Small Wireless
Facility, as defined herein, is an example of a Communications Facility.
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).
A pole that is specially designed and placed for aesthetic
purposes, and which may allow for collocation of multiple carriers,
and additional municipal services including, but not limited to, public
Wi-Fi and surveillance cameras. Decorative Pole design(s) approved
by the Borough are attached as Exhibit A to this chapter.
The person appointed by the Borough to serve as the initial
point-of-contact and consultant for the Borough for all matters pertaining
to this chapter, and who may be contracted for professional services.
An eligible facilities request as set forth in 47 C.F.R.
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, pole or tower, that does
not require blocking, damaging or disturbing any portion of the public
Right-of-Way.
A written authorization to install, at a specified location(s)
in the public Right-of-Way, a communications facility, tower 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, concrete, metal or other material, located
or to be located within the public Right-of-Way. A pole does not include
a tower or support structure and does not include a pole or structure
that supports electric transmission lines.
A communications service Provider or a wireless services
Provider, and includes any person that owns and/or operates within
the public Right-of-Way any communications facilities, wireless facilities,
poles built for the sole or primary purpose of supporting communications
facilities or towers. The terms Applicant and Provider may be used
interchangeably in this chapter and refer to the same person, as applicable.
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 Borough.
In connection with an existing pole, support structure or
tower, 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 the following qualifications:
(i) each antenna is no more than three cubic feet in volume; and (ii)
all other wireless equipment associated with the antenna, including
any preexisting equipment, is cumulatively no more than 28 cubic feet
in volume, (iii) the maximum height of the Small Wireless Facility
is 50 feet.
The State of New Jersey.
An Antenna with a maximum volume of 1.5 cubic feet, including
any ancillary components of said Antenna, which is attached to communication
wiring that is mounted to and which runs between utility Poles or
similar structures in the Right-of-Way and which are intended to support
such communications wiring.
A structure in the public Right-of-Way other than a pole
or a tower to which a wireless facility is attached at the time of
the application.
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.
Any structure in the public Right-of-Way built for the sole
or primary purpose of supporting a wireless facility. A tower does
not include a pole or a support structure.
The equipment at a fixed location or locations in the public
Right-of-Way that enables wireless services. The term does not include:
(i) the support structure, tower or pole on, under, or within which
the equipment is located or collocated; or (ii) 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. A wireless facility is one type of communications
facility.
Any wireless services using licensed or unlicensed spectrum,
whether at a fixed location or mobile, provided to the public.
[Added 6-27-2023 by Ord.
No. 2023-09]
Prior to installing in the public Right-of-Way any Communications
Facility or any Pole built for the sole or primary purpose of supporting
a Communications Facility, or any tower, a person shall enter into
a Right-of-Way Use Agreement with the Borough of Belmar expressly
authorizing use of the public Right-of-Way for the communications
facility, pole or tower proposed to be installed.
a.
The term of the Right-of-Way Use Agreement shall not exceed 30 years.
b.
The Right-of-Way Use Agreement authorizes the Provider or Applicant's
non-exclusive use of the public Right-of-Way 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 Right-of-Way in which
the Borough has an actual interest. It is not a warranty of title
or interest in any public Right-of-Way and it does not confer on the
Provider any interest in any particular location within the public
Right-of-Way. No other right or authority is granted except as expressly
set forth in the agreement. Nothing herein shall authorize the use
of the Borough's poles, towers, support structures, or other
structures in the public Right-of-Way. All use of the Borough's
poles, towers, support structures and other structures in the public
Right-of-Way shall require a separate agreement and the payment of
separate fees for such use.
c.
Approved locations shall be included as an exhibit to the Agreement, with said approved locations determined via adherence to the location selection process outlined in § 43-4 and pre-selected locations described in Exhibit B[1] herein.
[1]
Editor's Note: Exhibit B is on file in the Borough offices.
d.
Approved design or designs for Small Wireless Facilities, including
Decorative Pole designs described in Exhibit A[2] herein, and any other facilities for which Borough approval
is granted shall be included as an exhibit to the Agreement.
[2]
Editor’s Note: Exhibit A is on file in the Borough offices.
e.
The Provider shall, at its sole cost and expense, keep and maintain
its communications facilities, poles, support structures and towers
in the public Right-of-Way in a safe condition, and in good order
and repair.
f.
The Provider shall provide insurance and indemnification of the Borough
as described in the Right-of-Way Use Agreement. The Provider shall
provide proof of the following coverages:
1.
Worker's Compensation and Employer's Liability insurance
in compliance with the State's Worker's Compensation Law,
with minimum limit of liability of $500,000.
2.
Comprehensive General Liability insurance with minimum limit of liability
of $2,000,000 per occurrence.
3.
Automobile Liability insurance covering claims for bodily injury
and property damage arising from all owned, hired and non-owned vehicles
with minimum limit of liability of $1,000,000 combined single limit.
g.
The following applies to any Right-of-Way Use Agreement entered into
pursuant to this section:
1.
The terms and conditions of a Right-of-Way Use Agreement between
the Borough and a cable television service Provider for the installation
of Cabinets and Antennas in the Public Right-of-Way may be modified
from the above conditions if any of the following apply:
(a)
Such modification is required by the New Jersey Board of Public Utilities.
(b)
Such modification is required by any other local, state or federal
agency having jurisdiction over the provision of cable services and
laws and regulations pertaining to the installation of cable television
infrastructure pursuant to same.
2.
In such instances, at minimum, a Right-of-Way agreement shall include:
(a)
An exhibit listing all installed facilities, located by nearest address
and coordinates.
(b)
A basic verbal and graphical description of the equipment installed.
(c)
This subsection is intended to encompass, in particular, large cabinets
installed in the Right-of-Way as well as Strand Mounted Antennas,
as the term is defined herein, as well as any new deployment patterns
which fall outside of the types of facilities which are typical and
standard for cable television network infrastructure.
3.
It is the intention of this chapter that any Right-of-Way agreement
between the Borough and a cable television service Provider shall
not regulate the installation of cabling and communication wiring.
Communications cabling and wiring shall be regulated by the applicable
franchise issued to the cable television service Provider pursuant
to the New Jersey Cable Television Act.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
No person may construct, maintain or perform any other work in the
Public Right-of-Way related to Communications Facilities, Wireless
Facilities, Poles built for the sole or primary purpose of supporting
Communications Facilities, Poles or Towers without first receiving
a permit to the extent required under this chapter, and any subsequent
permits or authorizations required by applicable laws or the Borough,
hereinafter referred to as a Permit or Right-of-Way Permit.
b.
Permit required. Unless expressly authorized in this chapter or in
writing by the Borough, no person may construct, install, modify,
expand, alter or maintain in the public Right-of-Way any Small Wireless
Facilities, communications facilities, poles built for the sole or
primary purpose of supporting communications facilities or towers,
including the installation or collocation of communications facilities
on existing poles, towers, support structures or other structures
within the public Right-of-Way without first receiving a Permit.
c.
Notwithstanding the foregoing, in the event of an emergency, a Provider
or its duly authorized representative may work in the public Right-of-Way
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.
d.
The Borough shall not issue a permit unless the Applicant, or a Provider on whose behalf the Applicant is constructing communications facilities, poles or towers, has applied for and received the Right-of-Way Use Agreement required by § 43-2 of this chapter, or otherwise has a current and valid franchise with the Borough expressly authorizing use of the public Right-of-Way for the communications facilities, poles or towers proposed in the application, and all applicable fees have been paid.
e.
The Provider shall not locate or maintain its communications facilities,
wireless facilities, support structure, poles and towers so as to
unreasonably interfere with the use of the public Right-of-Way by
the Borough, by the general public or by other persons authorized
to use or be present in or upon the public Right-of-Way.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
General Siting Standards, Pre-Selected Locations.
1.
Applicant shall restrict its Communications Facility and Pole placement
to the locations selected and highlighted in Exhibit B[1] to this chapter, with said Exhibit B consisting of all
locations in the Borough where Communications Facilities and Poles
in the Public Right-of-Way are pre-approved as to location, with other
terms and conditions subject to this chapter.
[1]
Editor's Note: Exhibit B is on file in the Borough offices.
2.
If said Exhibit B locations are deemed to be unacceptable or insufficient
for Applicant's network requirements, Applicant shall reasonably
demonstrate why this is the case to the satisfaction of the Borough.
3.
If Applicant can sufficiently demonstrate the conditions of paragraph
a2 above, then Borough may approve additional locations for the placement
of its Communications Facilities, with the fewest number of additional
locations being approved as are necessary to meet the coverage requirements
of Applicant.
4.
Said Exhibit B shall be made available to Applicant in a GIS-compatible
format upon request.
b.
Location, Safety and Aesthetics. No Pole shall be erected in the
public Right-of-Way unless it:
1.
Complies with the above General Siting Standards; and
2.
Is replacing an existing Pole; or
3.
Is approved by the Borough; or
4.
Is located within the Public Right-of-Way; and
5.
Is at least 500 linear feet from any other existing pole or proposed
pole, which is used to support a Small Wireless Facility by the Applicant,
and is at least 250 feet from any Small Wireless Facility by any other
Communications Service Provider, unless Applicant can reasonably demonstrate
that such minimum spacing requirements constitute a prohibition of
service; and
6.
Is not located in an area with underground utilities except as specified
in paragraph g3 below; and
7.
Does not inhibit any existing sight triangles; and
8.
Does not interfere with Public Right-of-Way usage by first responders
and other emergency services vehicles and personnel; and
9.
Does not interfere with ingress and egress on to and off of private
property; and
10.
Does not pose a traffic hazard or other hazardous condition; and
11.
Allows adequate room for the public to pass and re-pass across the
public Right-of-Way; and
12.
Is no taller than 40 feet in height, including the antennas, or 110%
of the height of poles in the surrounding streetscape, whichever is
higher; and
13.
Is no further than five feet from the curb line, if applicable; and
c.
Decorative Poles. At its sole discretion, the Borough may require
adherence to the following design standards, which will be enforced
in a non-discriminatory manner:
1.
Borough may reasonably require Applicant to utilize the Decorative
Pole designs included in Exhibit A to this chapter for all proposed
Poles and Small Wireless Facilities.
2.
Applicant retains responsibility for acquiring and configuring, at
Applicant's own expense, said Decorative Poles for use for provision
of its telecommunications services.
4.
If Applicant can demonstrate this to the Borough's reasonable
satisfaction, then the Borough may approve additional Decorative Pole
designs that are technically feasible to Applicant, or approve of
the use of a standard utility pole for a Small Wireless Facility,
at the Borough's sole discretion.
5.
Applicant will heed reasonable requests by the Borough, pursuant
to this subsection, to utilize stealth technology and Decorative Pole
designs, including those described above, in order to preserve the
existing character and streetscape and minimize impact on surrounding
properties by causing the proposed Small Wireless Facilities to blend
in compatibly with their background.
6.
The final approved Decorative Pole design may vary due to discussion
between carrier and Borough, and with Borough approval.
7.
Borough may update its preferred design, or add more than 1 design
via publishing a revision or update, or even include a design selection
tool in the ordinance itself via exhibit. Applicant is free to contact
the Borough to confirm the most recent approved Decorative Pole design
or designs.
d.
Antenna Design Requirements. Each Pole mounted Antenna:
e.
Cabinet Design Requirements. Each pole-mounted cabinet:
f.
Strand Mounted Antenna Siting and Design Standards. All Strand Mounted
Antennas shall comply with the following standards:
1.
Located between two utility Poles on communication wiring that is
parallel to the ground and the edge of the Right-of-Way.
2.
Not located on communication wiring that crosses the Right-of-Way.
3.
Located entirely within the limits of the Public Right-of-Way.
4.
Placed as close as possible to the nearest utility Pole, and in no
event more than five feet from the Pole unless a greater distance
is technically necessary or is required by the utility Pole owner
for safety clearance.
5.
Not exceed a maximum volume of 1.5 cubic feet, including Antenna
and supplementary equipment.
6.
No Strand-Mounted Antenna or component shall exceed 18 inches in
diameter.
7.
No portion of a Strand Mounted Antenna shall extend greater than
a distance of 12 inches measured from the wiring on which it is mounted.
8.
Consolidated to the greatest extent technically feasible.
g.
Additional Requirements.
1.
Structural Certification. The Borough may also require that an Applicant
provide a certification from a licensed engineer attesting to the
structural integrity of any pole mounted antenna or pole mounted cabinet.
2.
Ground Mounted Equipment. Ground mounted equipment may be used only
to house equipment and other supplies in support of the small wireless
facility.
3.
Underground Utilities. Unless otherwise agreed to in writing by the
Borough or otherwise required by applicable laws, whenever any existing
electric utilities or communications facilities are located underground
within a public Right-of-Way, the Provider with permission to occupy
the same portion of the public Right-of-Way shall locate its communications
facilities underground at its own expense. The Borough may, in its
sole discretion, approve above-ground placement of equipment cabinets,
pedestals and similar equipment. For facilities or equipment such
as wireless facilities that cannot, by their nature, operate unless
located above ground, the Provider and Borough shall work to find
a suitable location for such facilities or equipment, and which may
be outside the public Right-of-Way, only if the Borough owns or otherwise
manages said locations and has the authority to make them available
to Applicant for its communications facilities under similar terms
and conditions as locations are made available in the public Right-of-Way.
The Applicant shall not be compelled to locate its above ground wireless
facilities on private property that is not owned, controlled or otherwise
managed by the Borough.
4.
Total Volume. All wireless equipment associated with the pole or
tower, including the wireless equipment associated with the antenna
and any preexisting associated equipment shall not be more than 28
cubic feet in volume.
5.
As-Built Plans. 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.
6.
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, including Decorative Poles
and designs approved in Exhibit B[3] to this chapter, in the Public Right-of-Way to the fewest
possible to meet the coverage and capacity requirements, while remaining
adherent to the spacing requirements contained herein in § 43-4B.
[3]
Editor's Note: Exhibit B is on file in the Borough offices.
7.
Fewest Possible Communications Facilities. Applicant shall minimize
the number of new proposed Communications Facilities, including Small
Wireless Facilities, Strand Mount Antennas, and any other communications
facilities, in the Public Right-of-Way to the fewest possible to meet
its coverage and capacity requirements.
8.
Collocation. To the maximum extent practical, Applicant shall make
its poles available to subsequent and additional Applicants who desire
to utilize the Right-of-Way to provide Wireless Services. Applicants
shall collocate on existing Poles when possible.
9.
Advertising and Signage. Unless otherwise permitted by the Borough,
all Communications Facilities and supporting Poles and other support
structures shall not contain any advertising or signage, other than
that which is required by the FCC and New Jersey Board of Public Utilities,
as well as other applicable state, local and federal laws and regulations.
10.
Noise. Small Wireless Facilities shall not cause noise that will
result in a disturbance to nearby properties or interfere with the
right of quiet enjoyment to same, and shall not violate the provisions
of any applicable noise ordinance, including local state and federal
standards. Small Wireless Facilities shall adhere to noise standards
for stationary commercial and industrial sources promulgated by the
New Jersey Department of Environmental Protection (NJDEP) via its
statutory authority under the 1971 Noise Control Act and specified
in detail in the Model Local Noise Control Ordinance. This includes
the standard that sound levels emitted from Small Wireless Facilities
may not exceed 65 decibels between 7:00 a.m. and 10:00 p.m. and may
not exceed 50 decibels between 10:00 p.m. and 7:00 a.m., as well as
any such and related standards which are revised by the NJDEP from
time to time.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
The Provider, or its agent or contractor, shall restore, repair and/or
replace any portion of the public Right-of-Way that is damaged or
disturbed by the Provider's communications facilities, poles,
towers or work in or adjacent to the public Right-of-Way. Said restoration,
repair and replacement shall be done to the satisfaction of the Borough
engineer who will determine good workmanship as well as compliance
with applicable standards and ordinances regarding road openings and
pavement and sidewalk repair.
b.
If the Provider fails to timely restore, repair or replace the public
Right-of-Way as required in this section, the Borough or its contractor
may do so and the Provider shall pay the Borough's costs and
expenses in completing the restoration, repair or replacement.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
Within 30 days following written notice from the Borough, 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, support structures or towers
within the public Right-of-Way, including relocation of above-ground
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 Right-of-Way, 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, support structures
or towers as required in this section.
b.
The Borough retains the right and privilege to cut or move any communications
facility, pole, support structure or tower located within the public
Right-of-Way 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, support structure or tower. In all cases, the Borough shall
notify the Provider after cutting or removing the communications facility,
pole, support structure or tower as promptly as reasonably possible.
c.
A Provider shall notify the Borough of abandonment of any communications
facility, pole, support structure or tower 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, support structure or tower at the Provider's own expense,
unless the Borough determines, in its sole discretion, that the communications
facility, pole, support structure or tower may be abandoned in place.
The Provider shall remain solely responsible and liable for all of
its communications facilities, poles, support structures and towers
until they are removed from the public Right-of-Way unless the Borough
agrees in writing to take ownership of the abandoned communications
facilities, poles, support structures or towers.
d.
If the Provider fails to timely protect, support, temporarily or
permanently disconnect, remove, relocate, change or alter any of its
communications facilities, poles, support structures or towers or
remove any of its abandoned communications facilities, poles, support
structures or towers 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. At the Borough's sole
discretion, said facilities shall then be considered the property
of the Borough.
e.
All relocated and replaced Communications Facilities shall be of
similar design and of similar or smaller dimensions than the existing
facilities to be replaced or relocated.
[Added 6-27-2023 by Ord.
No. 2023-09]
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 $1,000
per new small wireless facility, including any new pole or support
structure, as applicable, and $500 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.
Designee consulting fee. Applicant shall be responsible for Designee
consulting fees which will be a reasonable reflection of objectively
reasonable costs, and which shall be first paid to Designee via the
permit application escrow. Said fee shall be at the rate of $350 per
hour and shall not exceed three hours per installation, modification,
alteration, upgrade or expansion of a small wireless facility or pole
or support structure. Said consultation shall supplement Borough personnel
with expertise and knowledge not otherwise possessed by Borough agents
and officials.
f.
Annual Right-of-Way occupancy rate shall be $270 per annum, and shall
be paid within 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 90 days after
the full execution of the applicable Right-of-Way Use Agreement between
Borough and Applicant.
g.
Annual attachment rate shall be 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 30 days of issuance of the applicable permit(s)
and annually thereafter. The annual rates in this subsection and the
annual Right-of-Way occupancy rate subsection combined shall not exceed
$270 annually per small wireless facility location.
h.
All fees and rates will be applied in a non-discriminatory 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, towers, support structures, ducts,
conduits or other structures in the public Right-of-Way, as set forth
in attachment agreements authorizing such use.
j.
No refund. Except as otherwise provided in the Right-of-Way Use Agreement,
Franchise Agreement or License, the Provider may remove its communications
facilities, poles or towers from the public Right-of-Way at any time,
upon not less than 30 days' prior written notice to the Borough,
and may cease paying the Borough any applicable recurring fees for
such use, as of the date of actual removal of the facilities and complete
restoration of the public Right-of-Way. In no event shall a Provider
be entitled to a refund of any fees paid prior to removal of its communications
facilities, poles or towers.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
Permit application requirements. The application shall be made by
the Applicant or its duly authorized representative. It shall be submitted
to the Borough engineer 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, tower, 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, tower 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, tower, support structure or wireless facility (as
applicable).
6.
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 public Right-of-Way
features such as curb ramps for handicap accessibility pursuant to
the Americans With Disabilities Act,[1] sidewalk width and other details standard for these types
of telecommunications installations in the public Right-of-Way.
[1]
Editor's Note: See 42 U.S.C.A. § 12101 et seq.
7.
To the extent the proposed facility involves collocation on a pole,
tower or support structure, a structural report performed by a duly
licensed engineer evidencing that the pole, tower or support structure
will structurally support the collocation (or that the pole, tower
or support structure will be modified to meet structural requirements)
in accordance with applicable codes.
8.
For any new aboveground facilities, accurate visual depictions or
representations. If not included in the construction drawings.
9.
The following additional permits, approvals and authorization, as
each is reasonably applicable to the proposed application:
b.
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.[2] 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 proprietary 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.
[2]
Editor's Note: See N.J.S.A. 47:1A-1 et seq.
c.
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 Borough 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 no costs for said inspections.
However, 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
10 days to the configuration of the most recently approved permit
or retroactively apply for administrative approval for the unapproved
modifications. In such instances, Applicant will be responsible for
costs and fees incurred by the Borough to perform inspections and
review.
d.
Material changes. Unless otherwise agreed to in writing by the Borough,
any material changes to an application, as determined by the Borough
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.
e.
Application fees. Unless otherwise provided by applicable laws, all applications pursuant to this chapter shall be accompanied by the required fees more specifically described in § 43-7 herein.
f.
Effect of permit. A permit from the Borough authorizes an Applicant
to undertake only the activities in the public Right-of-Way 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 Right-of-Way; 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 issued pursuant to this chapter does not
create a property right or grant authority to the Applicant to interfere
with other existing uses of the public Right-of-Way.
g.
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 by 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.
h.
Batch permit. An Applicant may simultaneously submit not more than
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.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
Pre-application Meeting. Prior to making a formal application with
the Borough for use of the public Right-of-Way, all Applicants are
may meet voluntarily with the Borough Engineer and Designee to review
the scope of the Applicant's proposal. This meeting may include
discussion of Small Wireless Facility proposed locations and design.
b.
All applications made under this chapter shall be expedited so as
to comply with the shot clocks set forth in the FCC 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.
c.
The Designee and Borough Engineer shall review all applications for
the placement of new poles and new Small Wireless Facilities, including
ground level cabinets within the public Right-of-Way and the placement
of pole mounted antennas and pole mounted cabinets within the public
Right-of-Way, and advise the Borough whether the application is complete
and whether it meets the requirements of this chapter.
d.
Except as otherwise provided by applicable laws, the Borough shall,
within 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 10 days
without additional charge, in which case the Borough shall have 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 Borough shall review the application and, if the application
conforms with applicable provisions of this chapter, the Borough shall
issue the permit, subject to the standard permit requirements published
by the Borough.
f.
The Borough shall make its final decision to approve or deny the
Application within 60 days for a collocation of a small wireless facility
to an existing structure, and 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 an
existing structure or new structure shall be decided within 150 days.
g.
Waiver. The Borough, via its Council, Administrator or any person
designated as having the right to do so, 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)(11); or
3.
Will violate any requirement set forth by the FCC 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.
4.
Will violate or conflict with any applicable provision of P.L. 1972
c. 186, the "Cable Television Act", as codified in N.J.S.A. 48:5A-1
et seq.
5.
Will violate or conflict with the applicable terms and provisions
of any duly effective local system wide franchise for the provision
of cable television service, as the term is defined in N.J.S.A. 48:5A-3,
Definitions.
6.
Will violate or conflict with any applicable provision section 14:18
of the New Jersey Administrative Code which pertains to the provision
of cable television service.
7.
Will violate or conflict with any other applicable state or federal
law or regulation which pertains to the installation and operation
of communications facilities in the public rights-of-way, regardless
of whether such facilities are part of a wireless communications,
cable television or landline telephonic system.
h.
Final Decision by Borough. The Borough shall advise the Applicant
in writing of its final decision.
[Added 6-27-2023 by Ord.
No. 2023-09]
Notwithstanding anything else in the codes and ordinances of
the Borough of Belmar, the installation of antennas, small cells and
other communication devices and associated equipment in the public
Right-of-Way either on existing or new poles are permitted and considered
a permitted use if a Right-of-Way Use Agreement and Right-of-Way permits
are obtained pursuant to this chapter.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
All Communication Facilities installed and operated pursuant to this
chapter shall be maintained to assure their continued structural integrity
and to ensure they do not create a visual nuisance or safety hazard.
This may include, but is not limited to, routine visual inspection
to ensure the Communications Facilities have not fallen into any state
of disrepair so as to create an unsightly or hazardous condition.
This maintenance provision applies especially after a natural disaster,
flood, nor'easter, hurricane or other weather event which may
negatively impact said Communications Facilities.
b.
At the beginning of each calendar year, for as long as Communications
Facilities are maintained in the Public Right-of-Way pursuant to this
chapter, the Applicant will submit an annual report to the Borough
confirming that said Communications Facilities do not exceed the maximum
permitted exposure limits for radio frequency transmissions, as established
by the Federal Communications Commission.
[Added 6-27-2023 by Ord.
No. 2023-09]
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 Chapter 40, Development Regulations.
[Added 6-27-2023 by Ord.
No. 2023-09]
a.
Any communications facilities in the public Right-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
Right-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.
c.
The provisions of this chapter shall apply to the Consent Judgment
and Settlement Agreement ("Verizon Settlement Agreement") dated September
8, 2022, between Cellco Partnership d/b/a Verizon Wireless and the
Borough of Belmar et al. to the maximum extent possible, with the
applicable provisions of this chapter replacing and superseding those
of the Verizon Settlement Agreement when legally permissible and in
the best interests of the Borough.
d.
The provisions of this chapter shall apply to the 20 Small Wireless
Facilities approved by the above referenced Verizon Settlement Agreement
to the greatest legally permissible extent.
[Added 6-27-2023 by Ord.
No. 2023-09]
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 full business days prior to the commencement
of work.
[Added 6-27-2023 by Ord.
No. 2023-09]
Violation of any of the provisions of this chapter shall be
punishable with a civil penalty of $500 for each violation which continues
more than 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.
