[HISTORY: Adopted by the Board of Commissioners of the Township
of Nether Providence 9-23-2021 by Ord. No. 832. Amendments noted where
applicable.]
A.
The purpose of this chapter is to establish procedures and standards,
consistent with all applicable federal and state, laws, for the consideration,
permitting, siting, construction, installation, co-location, modification,
operation, regulation and removal of small wireless facilities ("SWF")
in the public right-of-way of streets and roads.
B.
The intent of this chapter is to:
(1)
Establish basic criteria for applications to install and/or co-locate
SWF in the public right-of-way;
(2)
Ensure that SWF are appropriately designed, constructed, modified,
maintained, and removed when no longer in use in conformance with
all applicable health and safety regulations;
(3)
Preserve the character of the Township by minimizing the potentially
adverse visual impact of SWF through careful design, siting, landscaping
and camouflaging techniques to blend these facilities into their environment
to the maximum extent practicable;
(4)
Establish an application process and structure for payment of fees
and charges to be uniformly applied to all applicants, operators and
owners of SWF for such facilities;
(5)
Comply with, and not conflict with or preempt, all applicable state
and federal laws, as may be amended or superseded, and all FCC rules
and regulations to interpret and implement applicable federal statutes;
and
(6)
Limit interference with the use of streets, sidewalks, alleys, parkways,
public utilities, public views, certain city corridors, and other
public ways and places.
C.
Zoning. Applications to co-locate a small wireless facility or install
or modify an associated utility pole in the rights-of-way shall be
treated as a permitted use pursuant to Act 50 of 2021, the Small Wireless
Facilities Deployment Act,[1] and exempt from local zoning where required by the Act.
Any other wireless facilities not meeting the definition of a small
wireless facility shall remain subject to applicable zoning requirements.
[1]
Editor's Note: See 53 P.S. § 11704.1 et seq.
D.
This chapter is intended to implement the requirements of the Small
Wireless Facilities Deployment Act. Failure of the Township to include
all language set forth in that Act in this Ordinance does not constitute
a waiver of any rights under the Act.
The provisions of this chapter shall only apply to activities
of a wireless provider within the right-of-way to deploy small wireless
facilities and associated new utility poles with small wireless facilities
attached.
The following words and phrases when used in this chapter shall
have the meanings given to them in this section unless the context
clearly indicates otherwise:
Telecommunications equipment that transmits and receives
electromagnetic radio signals used in the provision of all types of
wireless telecommunications services.
Any of the following:
Uniform building, fire, electrical, plumbing or mechanical codes
adopted by a recognized national code organization or local amendments
to those codes enacted solely to address imminent threats of destruction
of property or injury to persons.
Nether Providence Township zoning, land use, streets and sidewalks,
rights-of-way and permitting ordinances.
A communications service provider that submits an application.
A request submitted by an applicant to the Township:
Buildings, other structures and equipment used by the owner
or operator of a cable television system to provide service. As used
in this definition, the term "cable system" shall have the meaning
given to it in section 602(6) of the Cable Communications Policy Act
of 1984 [Public Law 98-549, 47 U.S.C. § 522(7)].
To install, mount, maintain, modify or replace small wireless
facilities on an existing utility pole or other wireless support structure.
A set of equipment and network components, including wires
and cables and associated facilities, used by a communications service
provider to provide a communications service.
Any of the following:
A cable operator as defined in Section 602(4) of the Cable Communications
Policy Act of 1984 [Public Law 98-549, 47 U.S.C. § 522(5)].
A provider of information service as defined in Section 3(20)
of the Communications Act of 1934 [48 Stat. 1064, 47 U.S.C. § 153(24)].
A telecommunications carrier as defined in Section 3(44) of
the Communications Act of 1934 [47 U.S.C. § 153(51)].
A wireless provider.
A municipal pole that is specially designed and placed for
aesthetic purposes.
The Federal Communications Commission.
A building that is or a group of buildings, properties or
sites that are:
Listed in the National Register of Historic Places or formally
determined eligible for listing by the Keeper of the National Register.
Determined to be eligible for listing by the Keeper of the National Register of Historic Places who has been delegated the authority by a Federal agency to list properties and determine their eligibility for the National Register of Historic Places in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic Agreement for Review Regarding the Section 106 National Historic Preservation Act Review Process as specified under 47 CFR Pt. 1, App. C (relating to Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process).
Marked as a historical site by the Pennsylvania Historical and
Museum Commission pursuant to 37 Pa.C.S.A. § 101 et seq.
(relating to historical and museums).
Within a historic district created pursuant to the act of June
13, 1961 (P.L. 282, No. 167), entitled "An act authorizing counties,
cities, Townships, incorporated towns and Townships to create historic
districts within their geographic boundaries; providing for the appointment
of Boards of Historical Architectural Review; empowering governing
bodies of political subdivisions to protect the distinctive historical
character of these districts and to regulate the erection, reconstruction,
alteration, restoration, demolition or razing of buildings within
the historic districts."
A small wireless facility that:
The improvement, upgrade or replacement of a small wireless
facility or an existing utility pole that does not substantially change,
as defined in 47 CFR § 1.6100(b)(7) (relating to wireless
facility modifications), the physical dimension of the small wireless
facility or utility pole.
A utility pole owned, managed or operated by or on behalf
of the Township of Nether Providence.
Township of Nether Providence.
The area on, below or above a public roadway, highway, street,
sidewalk, alley, utility easement or similar property. The term does
not include a federal interstate highway.
The equipment and network components, including antennas,
transmitters and receivers, used by a wireless provider that meet
the following qualifications:
Each antenna associated with the deployment is no more than
three cubic feet in volume.
The volume of all other equipment associated with the wireless
facility, whether ground-mounted or pole-mounted, is cumulatively
no more than 28 cubic feet. Any equipment used solely for the concealment
of the small wireless facility shall not be included in the calculation
of equipment volume under this definition.
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a material reduction in the functionality
of the small wireless facility.
Buildings, other structures and equipment owned or operated
by a public utility, as defined in 66 Pa.C.S.A. § 102 (relating
to definitions), to provide service.
A pole or similar structure that is or may be used, in whole
or in part, by or for telecommunications, electric distribution, lighting,
traffic control, signage or a similar function or for co-location.
The term includes the vertical support structure for traffic lights
but does not include wireless support structures or horizontal structures
to which signal lights or other traffic control devices are attached.
As follows:
A person authorized by the Pennsylvania Public Utility Commission
to provide telecommunications service in this commonwealth that builds
or installs wireless communication transmission equipment, wireless
facilities or wireless support structures but is not a wireless services
provider.
A wireless infrastructure provider or a wireless services
provider.
Services, whether at a fixed location or mobile, using a
licensed or unlicensed spectrum, provided to the public using wireless
facilities.
A person who provides wireless services.
The term shall have the same meaning given to it in the act
of October 24, 2012 (P.L.1501, No.191), known as the Wireless Broadband
Collocation Act.[1]
[1]
Editor's Note: Said appendix is on file in the Township offices.
Wireless providers shall be required to pay an annual fee for
the use of the right-of-way. The annual right-of-way fee shall initially
be $270 per small wireless facility or $270 per new utility pole with
a small wireless facility. The municipality may amend the fee from
time to time by resolution of Township Council to a rate not to exceed
the maximum rate which is found to be permitted by the Federal Communications
Commission and/or Small Wireless Facilities Deployment Act.[1]
[1]
Editor's Note: See 53 P.S. § 11704.1 et seq.
A.
In accordance with the Small Wireless Facilities Deployment Act,[1] and with the permission of the owner of the structure,
a wireless provider shall have the right to perform the following
within the public right-of-way:
(1)
Co-locate a small wireless facility.
(2)
Replace an existing utility pole or install a new utility pole with
attached small wireless facilities.
[1]
Editor's Note: See 53 P.S. § 11704.1 et seq.
B.
Co-location. In accordance with the Small Wireless Facilities Deployment
Act,[2] co-location on municipality-owned poles may be permitted
unless the small wireless facility would cause structural or safety
deficiencies to the municipal pole, in which case the municipality
and applicant shall work together for any make-ready work or modifications
or replacements that are needed to accommodate the small wireless
facility.
[2]
Editor's Note: See 53 P.S. § 11704.1 et seq.
C.
All structures and facilities shall be installed and maintained so
as not to obstruct nor hinder travel or public safety within the right-of-way
or obstruct the legal use of the right-of-way by the municipality
and utilities.
A.
Permit required. No person shall place a small wireless facility
or associated utility pole in the ROW, without first filing an application
and obtaining a permit therefore, except as otherwise provided in
this chapter.
B.
Application. All applications for permits filed pursuant to this
chapter shall be on a form, paper or electronic, provided by the Township
Manager.
C.
Application requirements. An application shall be made by the wireless
provider or its duly authorized representative, and shall contain
the following:
(1)
The wireless provider's name, address, telephone number, and email
address;
(2)
The applicant's name, address, telephone number, and email address,
if different than the wireless provider, and its interest in the work;
(3)
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.
(4)
A general description of the proposed work and the purposes and intent
of the small wireless facility. The scope and detail of such description
shall be appropriate to the nature and character of the work to be
performed, with special emphasis on those matters likely to be affected
or impacted by the work proposed.
(5)
A site plan, with sufficient detail to show the proposed location
of items the applicant seeks to install in the ROW, including any
manholes or poles, the size, type, and depth of any conduit or enclosure.
(6)
An attestation that the small wireless facilities will be operational
for use by a wireless services provider within one year after the
permit issuance date, unless the municipality and the applicant agree
to extend this period.
(7)
An attestation that, to the best of the applicant's knowledge, the
information contained in the application is true.
(8)
Whether each SWF is proposed to be installed on an existing pole
or structure or a new pole or structure.
(9)
The name of the owner of the pole or structure on which the SWF is
proposed to be installed and the address, phone number, email address
of the owner's contact person.
(10)
If a SWF is proposed to be installed on a pole or structure
owned by a party other than the applicant, the application shall be
accompanied by a written confirmation of the owner's agreement to
allow the applicant to locate each SWF on such owner's pole or structure.
(11)
Documentation in form of both narrative and drawings indicating
the size of each proposed SWF, the height of the pole or structure
on which each is proposed to be installed, and the cubic volume of
each SWF.
D.
When application not required. An application shall not be required for: (i) routine maintenance; (ii) the replacement of a small wireless facility with another small wireless facility that is substantially similar or smaller in size, weight, and height; or (iii) for the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between existing utility poles, in compliance with the National Electrical Safety Code. A permit may be required to perform work within the right-of-way for the activities under Subsection D for work that involves excavation, closure of a sidewalk or closure of a vehicular lane.
E.
Application fees. All applications for permits shall be accompanied
by a fee of $500 for a single up-front application that includes up
to five small wireless facilities, with an additional $100 for each
small wireless facility beyond five; and $1,000 in non-recurring fees
for each new associated utility pole.
F.
Consolidated applications. An applicant may submit a consolidated
application for up to 20 small wireless facilities.
(1)
A single applicant shall not exceed application for 20 small wireless
facilities in a thirty-day period.
(2)
The denial of one or more small wireless facilities in a consolidated
application shall not delay processing of any other small wireless
facilities in the same consolidated application.
(3)
A single permit may be issued for siting and collocating multiple
small wireless facilities spaced to provide wireless coverage in a
contiguous area.
(4)
If multiple applicants submit applications cumulatively exceeding
20 applications within in a thirty-day period, the extensions to deadlines
provided for in the Small Wireless Facilities Act shall apply.
A.
Review of small wireless facility and utility pole applications.
(1)
Within 10 days of receiving an initial application, the municipality will determine and notify the applicant whether the application is materially complete. If an application is materially incomplete, the municipality will specifically identify the missing documents or information, and the specific rule or regulation creating the obligation to submit such documents or information. The shot clock set forth in Subsection A(2) shall restart at zero on the date which the applicant submits all the documents and information identified by the municipality to make the application complete. If the applicant's supplemental submission fails to make the application complete, and the municipality notifies the applicant within 10 days of the supplemental submission and clearly and specifically identifies the missing documents or information, the applicable shot clock set forth in Subsection A(2) shall be tolled until the applicant provides the missing documents and information. The shot clock resumes (the date calculation does not restart) to run on the date when the applicant submits all the documents and information identified by the municipality to render the application complete.
(2)
All applications shall be processed on a nondiscriminatory basis,
and the municipality shall approve or deny an application for: (i)
co-location of a small wireless facility on an existing structure
within 60 days of receipt of the application, or (ii) within 90 days
for applications to deploy a small wireless facility using a new structure.
(3)
An applicant and the municipality may enter into a written agreement to toll the time periods set forth in Subsection A(2).
(4)
If the municipality fails to issue a decision on an application for a small wireless facility within the required time periods set forth in Subsection A(2), it shall constitute a deemed approved.
(5)
A municipality may deny a proposed co-location of a small wireless
facility or installation or modification of a utility pole only if
the proposed application:
(a)
The small wireless facility materially interferes with the safe
operation of traffic control equipment, sight lines or clear zones
for transportation or pedestrians or compliance with the Americans
with Disabilities Act of 1990 (Public Law 101-336, 104 Stat. 327)
or similar federal or state standards regarding pedestrian access
or movement.
(b)
The small wireless facility fails to comply with applicable
codes.
(d)
The applicant fails to submit a report by a qualified engineering
expert which shows that the small wireless facility will comply with
applicable FCC regulations.
(6)
The municipality must document the basis for a denial, including
the specific code provisions on which the denial was based, and send
the documentation to the applicant on or before the day the municipality
denies an application. The applicant may cure the deficiencies identified
by the municipality and resubmit the application within 30 days of
the denial without paying an additional application fee. The municipality
shall approve or deny the revised application within 30 days. Any
subsequent review shall be limited to the deficiencies cited in the
denial.
(7)
The applicant may cure the deficiencies identified by the municipality
and resubmit the application within 30 days of receiving the written
basis for the denial without being required to pay an additional application
fee. The municipality shall approve or deny the revised application
within 30 days of the application being resubmitted for review or
the resubmitted application shall be deemed approved 30 days after
resubmission. Any subsequent review shall be limited to the deficiencies
cited in the denial. If the resubmitted application addresses or changes
other sections of the application that were not previously denied,
the municipality shall be given an additional 15 days to review the
resubmitted application and may charge an additional fee for the review.
B.
Permit scope and effect. Installation, modification, or co-location
for which a permit is granted pursuant to this section shall be completed
within one year after the permit issuance date unless the municipality
and the applicant agree to extend this period. Approval of an application
authorizes the applicant to:
(1)
Co-locate on an existing utility pole, modify or replace a utility
pole or install a new utility pole with small wireless facilities
attached as identified in the initial application.
(2)
Subject to the permit requirements and the applicant's right to terminate
at any time, operate and maintain small wireless facilities and any
associated equipment on a utility pole covered by the permit for a
period five years, which shall be renewed for two additional five-year
periods if the applicant is in compliance with the criteria set forth
in the Small Wireless Facilities Deployment Act[2] and applicable codes, and the applicant has obtained all
necessary consent from the utility pole owner.
[2]
Editor's Note: See 53 P.S. § 11704.1 et seq.
C.
Authority granted; no property right or other interest created. A
permit from the municipality authorizes an applicant to undertake
only certain activities in accordance with this chapter and does not
create a property right or grant authority to the applicant to impinge
upon the rights of others who may already have an interest in the
ROW.
A.
Upon receipt of a completed application for a SWF permit and all
required fees, the Township Manager and/or the Township Engineer or
his or her respective designee shall review the application to determine
whether the proposed SWF and support structure or pole comply with
the following design criteria:
(1)
The structure on which antenna facilities are mounted: (a) an existing
utility pole, provided the installation does not extend more than
five feet above the pole; and (b) a new or replacement pole are not
taller than 50 feet. Any height in excess of these limits shall require
application to the Zoning Hearing Board for a variance.
(2)
Each antenna associated with the deployment (excluding the associated
equipment) may be no more than three cubic feet in volume; and
(3)
All other equipment associated with the facility (excluding antennas)
are cumulatively no more than 28 cubic feet in volume.
B.
General design requirements.
(1)
The Township may adopt by resolution small wireless facility design
guidelines with objective, technically feasible criteria applied in
a nondiscriminatory manner that reasonably match the aesthetics and
character of the immediate area.
(2)
The small wireless facility design guidelines may include examples
of SWF preferences including visual depictions (if readily available
and identified by the municipality).
(3)
The provisions in this chapter shall not limit or prohibit the municipality's
discretion to promulgate and make publicly available other information,
materials or requirements in addition to, and separate from, small
wireless facility design guidelines so long as the information, materials,
or requirements do not conflict with state or federal law.
(4)
All small wireless facilities and associated equipment located within
the public right-of-way shall be located such that it meets ADA requirements
and does not hinder, obstruct or impede usual pedestrian and vehicular
travel.
(5)
The Township shall have authority to update or supplement the small
wireless facility design guidelines to address relevant changes in
law, technology, or administrative processes.
(6)
Wireless support structure design standards.
(a)
General guidance.
[1]
SWF equipment must be indistinguishable from the support pole
or structure to the greatest degree possible using matching colors,
textures, and materials. The antennas and related equipment shall
be in a color that will provide the most camouflage.
[2]
All wires, antennas, and other small wireless facility equipment
shall be enclosed and not visible.
[3]
Screening and equipment enclosures shall blend with or enhance
the surrounding context in terms of scale, form, texture, materials,
and color. Equipment shall be concealed as much as possible by blending
into the natural and/or physical environment.
[4]
Casing to enclose all wires, antennas, and other small wireless
facility equipment may be mounted on top of existing and new poles
in a cylinder shape to look like an extension of the pole.
[5]
Brand logos and other signage are prohibited on all SWF except
contact information to be used by workers on or near the SWF and as
otherwise required by federal or state law. Signage will be no larger
than required to be legible from street level.
[6]
As a condition for approval of new small wireless facilities
or new wireless support structure in an historic district, the applicant
shall comply, to the greatest extent possible, with the design and
aesthetic standards of the historic district, or historic preservation
standards in place, to minimize the negative impact to the aesthetics
in these districts or areas.
A.
Within 60 days of suspension or revocation of a permit due to noncompliance
with applicable codes, the applicant shall remove the small wireless
facility and any associated equipment, including the utility pole
and any support structures if the applicant's wireless facilities
and associated equipment are the only facilities on the utility pole,
after receiving adequate notice and an opportunity to cure any noncompliance.
B.
Within 90 days of the end of a permit term or an extension of the
permit term, the applicant shall remove the small wireless facility
and any associated equipment, including the utility pole and any support
structures if the applicant's wireless facilities and associated equipment
are the only facilities on the utility pole.
Applicants are required to repair all damage directly caused
by the activities of the applicant and return the right-of-way in
as good of condition as it existed prior to any work being done. If
the applicant fails to make the repairs required by the municipality
within 30 days after written notice, the municipality may perform
those repairs and charge the provider the reasonable, documented cost
of the repairs plus a penalty not to exceed $500. The municipality
may suspend the ability of an applicant to receive a new permit from
the municipality until the applicant has paid the amount assessed
for the repair costs and the assessed penalty.
[Added 1-26-2023 by Ord. No. 848]
A.
SWF equipment must be indistinguishable from the support pole or
structure to the greatest degree possible using matching colors, textures,
and materials. The antennas and related equipment shall be in a color
that will provide the most camouflage.
B.
All wires, antennas, and other small wireless facility equipment
shall be enclosed and not visible.
C.
Screening and equipment enclosures shall blend with or enhance the
surrounding context in terms of scale, form, texture, materials, and
color. Equipment shall be concealed as much as possible by blending
into the natural and/or physical environment.
D.
Casing to enclose all wires, antennas, and other small wireless facility
equipment may be mounted on top of existing and new poles in a cylinder
shape to look like an extension of the pole.
E.
Brand logos and other signage are prohibited on all SWF except contact
information to be used by workers on or near the SWF and as otherwise
required by federal or state law. Signage will be no larger than required
to be legible from street level.
F.
As a condition for approval of new small wireless facilities or new
wireless support structures in an historic district or adjacent to
an historic district, the applicant shall comply, to the greatest
extent possible, with the design and aesthetic standards of the historic
district, or historic preservation standards in place, to minimize
the negative impact to the aesthetics in these districts or areas.
