[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
ADMINISTRATIVE REVIEW
ANTENNA
APPLICABLE CODES
APPLICANT
APPLICATION
AUTHORITY
CITY
COLLOCATE
COLLOCATION
COMMUNICATIONS FACILITY
COMMUNICATIONS SERVICE
CONSULTANT
FCC
LAWS
ORDINARY MAINTENANCE AND REPAIR
PERMIT, R.O.W. PERMIT OR SMALL CELL PERMIT
PERMITTEE
PERSON
POLE
PROVIDER
PUBLIC RIGHT OF WAY OR PUBLIC ROW
SMALL WIRELESS FACILITY
SMART POLE
STATE
SUPPORT STRUCTURE
SURROUNDING STREETSCAPE
WIRELESS FACILITY
WIRELESS SERVICES
As used in this chapter:
Shall mean ministerial review of an Application by the City
to determine whether the issuance of a Permit is in conformity with
the applicable provisions of this chapter.
Shall mean 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.
Shall mean 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.
Shall mean any Person or Entity who submits an Application
under this Chapter, such as a Provider described herein.
Shall mean the City Council of the City of Asbury Park. The
term "Authority" and "City" are interchangeable.
Shall mean the City of Asbury Park, in the County of Monmouth,
New Jersey.
Shall mean to install or mount a Small Wireless Facility
in the Public Right-Of-Way on an existing Support Structure, on an
existing Pole or existing Smart Pole, or on a new pole, or new Smart
Pole.
Shall have a corresponding meaning.
Shall mean, collectively, the equipment at a fixed location
or locations within the Public ROW 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 or Support Structure to which the
equipment is attached.
Shall mean a telecommunications service, as defined in 47
U.S.C. § 153(53).
Shall mean the Person appointed by the City to serve as the
consultant for the City for all matters concerning this chapter, and
who may be contracted for professional services.
Shall mean the Federal Communications Commission of the United
States.
Shall mean, collectively, any and all Federal, State or Local
law, statute, common law, code, rule, regulation, order, or ordinance.
Shall mean 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 Smart Pole,
that does not require blocking, damaging or disturbing any portion
of the Public ROW.
Shall mean 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.
Shall mean an Applicant that has received a Permit under
this chapter.
Shall mean an individual, corporation, limited liability
company, partnership, association, trust or other entity or organization,
including a governmental entity.
Shall mean a legally constructed pole, such as a utility,
lighting or similar pole made of wood, metal or other material as
determined by the City, located or to be located within the Public
Right-of-Way. A Pole does not include a Support Structure.
Shall mean 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.
Shall mean 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.
Shall mean a wireless facility that meets both of the following
qualifications: (i) each antenna is located inside an enclosure of
no more than six cubic feet in volume or, in the case of an antenna
that has exposed elements, the antenna and all of its exposed elements
could fit within an imaginary enclosure of no more than six cubic
feet; and (ii) all other wireless equipment attached directly to a
utility pole associated with the facility is cumulatively no more
than 25 cubic feet in volume. The following types of associated ancillary
equipment are not included in the calculation of equipment volume:
electric meter, concealment elements, telecommunications demarcation
box, ground-based enclosures, grounding equipment, power transfer
switch, cut-off switch, and vertical cable runs for the connection
of power and other services.
Shall mean a decorative utility pole that conceals at least
two (2) 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 two (2) occupants and allow space for City use for other
services and/or equipment. Smart Poles shall neither have external
latches, external hinges, external cabling, or other attachments.
The pole must be made of an inherently rust-resistant material (i.e.
aluminum alloys or stainless steel).
Shall mean the State of New Jersey.
Shall mean a structure in the Public ROW other than a Pole
which is capable of supporting a Wireless Facility.
Shall mean 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.
Shall mean the equipment at a fixed location or locations
in the Public ROW 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, fiberoptic
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.
Shall mean any wireless services using licensed or unlicensed
spectrum, whether at a fixed location or mobile, provided to the public.
b.
All definitions of words, terms and phrases that are set forth in
the Communications Act of 1934, P.L. 73-416, as amended by various
statutory enactments including, but not limited to, the Telecommunications
Act of 1996 P.L. 104-104, are incorporated herein and made a part
hereof.
c.
All definitions of words, terms and phrases that are set forth in
the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1, et seq.,
are incorporated herein and made a part hereof.
d.
All of the definitions of words, terms and phrases that are set forth
in the Code of Federal Regulations at 47 C.F.R. § 1.6002,
as amended, are incorporated herein and made a part hereof.
e.
In the event that a term, word or phrase is not defined in any of
the aforementioned statutes and is not otherwise defined herein then
that term, word or phrase shall have its common, ordinary meaning.
f.
Use of any term, word or phrase as defined above at any point within
this chapter shall coincide with the definition specified in this
Section, whether or not the first letter of the term, word or phrase
is capitalized.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
Prior to installing in the Public R.O.W. any Communications
Facility, or any Pole built for the sole or primary purpose of supporting
a Communications Facility, a person shall submit an application demonstrating
the need to install in the public R.O.W. and, if applicable, the need
for the construction of a new pole rather than utilizing space on
an existing pole. Such demonstration(s) must be shown to the satisfaction
of the City's Radio Frequency Engineer. Additionally, the applicant
must demonstrate, to the satisfaction of the City's Radio Frequency
Engineer, that it is prepared to construct the communications facility
or pole at the designated location(s) set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City, or that
the applicant has entered into an agreement with another wireless
services provider that is prepared to construct the communications
facility or pole at the designated location set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City. Once
an application has been deemed acceptable under this chapter by the
City, its departments and its consultants, a person shall enter into
a Right-of-Way Use Agreement (also referenced as "R.O.W. Use Agreement"
or "Agreement") with the City of Asbury Park expressly authorizing
use of the Public Right-of-Way for the Communications Facility or
Pole proposed to be installed. The following provisions shall be applicable
to all Right-of-Way Use Agreements:
a.
The term of the R.O.W. Use Agreement shall be a minimum of 15 years
and shall not exceed 30 years.
b.
The R.O.W. Use Agreement authorizes the Provider's non-exclusive
use of the Public R.O.W. 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 R.O.W. in which the City has an actual interest.
It is not a warranty of title or interest in any Public R.O.W. and
it does not confer on the provider any interest in any particular
location within the Public R.O.W. No other right or authority is granted
except as expressly set forth in the R.O.W. Use Agreement. Nothing
herein shall authorize the use of the City's poles or support
structures, in the Public R.O.W., without express approval from the
City. All use of the City's poles or support structures in the
Public R.O.W. 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 R.O.W. in a safe condition, and in good order and repair.
d.
The provider shall provide insurance to, and indemnification of,
the City as described in the R.O.W. Use Agreement, a copy of which
is on file with the City Clerk's Office.
e.
The form of the R.O.W. Use Agreement shall be approved by resolution
of the City Council and may, from time to time, be revised, supplemented
or otherwise amended or replaced. All such revisions, supplements,
amendments or replacements shall likewise be approved by resolution
of the City Council. The City Clerk shall maintain on file the currently
approved R.O.W. Use Agreement and shall provide a copy to all R.O.W.
permit applicants pursuant to this chapter.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
No Person may construct, install, modify, expand, alter or maintain
or perform any other work in the Public R.O.W. related to Communications
Facilities or 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 first demonstrated, to the satisfaction of
the City's Radio Frequency Engineer, the need for such construction
based upon the requirements of this chapter, and has applied for and
received the R.O.W. Use Agreement required by this chapter, 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 R.O.W. by the City, by the general
public or by other persons authorized to use or be present in or upon
the Public R.O.W.
d.
The authority shall not issue a permit unless the applicant has demonstrated
to the satisfaction of the City's Radio Frequency Engineer:
1.
The need to install in the public R.O.W.;
2.
If applicable, the need for construction of a new pole rather than
utilizing space on an existing pole; and
3.
Proof that the applicant is prepared to construct the communications
facility or pole at the designated location(s) set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City, or that
the applicant has entered into an agreement with another wireless
services provider that is prepared to construct the communications
facility or pole at the designated location set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
Permit Required. Pursuant to Section 17-3 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 R.O.W. 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 R.O.W. 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 R.O.W. prior to obtaining a permit, provided that the provider shall attempt to contact the City Engineer 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 to the satisfaction
of the City's Radio Frequency Engineer, compliance with the provisions
of this chapter, including, but not limited to, the following:
(a)
The need to install in the public R.O.W.;
(b)
If applicable, the need for construction of a new pole rather than
utilizing space on an existing pole; and
(c)
Proof that the applicant is prepared to construct the communications
facility or pole at the designated location(s) set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City, or that
the applicant has entered into an agreement with another wireless
services provider that is prepared to construct the communications
facility or pole at the designated location set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City.
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:
c.
The applicant shall certify that they shall market the availability
of approved facilities to all major wireless carries 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.
d.
The application and permitting processes set forth herein may be
revised, supplemented or otherwise amended or replaced by resolution
of the City Council.
e.
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. 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 City shall treat the information
as propriety and confidential, subject to the New Jersey Open Public
Records Act and the City's determination that the Applicant's
request for confidential or proprietary treatment of application materials
is reasonable. The City shall not be required to incur any costs to
protect the application materials from disclosure, other than the
City's routine procedures for complying with the New Jersey Open
Public Records Act.
f.
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 City 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 City 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.
g.
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 application laws.
h.
Application Fees. Unless otherwise provided the applicable laws,
all applications pursuant to this chapter shall be accompanied by
the required Fees, without which the application shall be deemed incomplete.
i.
Effect of Permit. A permit from the authority authorizes an applicant
to undertake only the activities in the Public R.O.W. 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 R.O.W.; 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 R.O.W.
j.
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.
k.
Batch Permit. An applicant may simultaneously submit no 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 City. 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 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
Pre-Application Meeting. Prior to making a formal application with
the City for use of the Municipal Right-of-Way, all applicants are
required to meet with the City Manager, City Engineer and/or 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 City Manager and/or his/her designees, which may include the
municipal attorney, Municipal Engineer and/or Consultant shall review
all applications for the placement of new poles within the Municipal
R.O.W. and the placement of pole mounted antennas and pole mounted
cabinets within the Municipal R.O.W. 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 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 authority 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 City's sole discretion, deny the
application.
e.
The authority shall review the application and, if the application
conforms with applicable provisions of Chapter, the authority shall
issue the permit, subject to the standard permit requirements published
by the City.
f.
The authority 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 City 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
Chapter where the applicant demonstrates that strict enforcement of
said standard:
1.
Will prohibit or have the effect of prohibiting any interstate or
intrastate communications service pursuant to 47 U.S.C. 253(a); or
(a)
Will prohibit or have the effect of prohibiting personal wireless
service pursuant to 47 U.S.C. 332(c)(7)(B)(i)(11); or
(b)
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.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
Height. No pole shall be taller than 42 feet in height including
the antennas or 110% of the height of poles in the surrounding streetscape,
whichever is higher.
b.
Distance from curb line. The edge of the base of the pole shall not
be further than 18 inches from the curb line.
c.
Location. Safety and Aesthetics. No pole shall be erected in the
Public Right-of-Way unless it:
1.
Is replacing an existing pole with a Smart Pole, the design of which
shall be subject to administrative review and approval by the City;
2.
Is approved by the authority and the authority's Radio Frequency
Engineer, including the design thereof;
3.
Is located entirely within the Public Right-of-Way;
4.
Is at least 500 linear feet from any other existing pole or proposed
pole which is used to support a Small Wireless Facility;
5.
Is not located in an area with underground utilities, as determined
by the City;
6.
Does not inhibit any existing sight triangles, as determined by the
City;
7.
Allows adequate room for the public to pass and re-pass across the
right-of-way, as determined by the City, and complies at a minimum
with federal Americans With Disabilities Act ("ADA") standards;
8.
Is a Smart Pole, the design of which shall be subject to administrative
review and approval by the City;
9.
Is shown to the satisfaction of the City's Radio Frequency Engineer
to be needed in order to provide adequate coverage or capacity for
wireless services for the public, and is shown to the satisfaction
of the City's Radio Frequency Engineer that collocation on an
existing pole is not reasonably feasible; and
10.
Is shown that the applicant is prepared to construct the communications
facility or pole at the designated location(s) set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City, or that
the applicant has entered into an agreement with another wireless
services provider that is prepared to construct the communications
facility or pole at the designated location set forth in the application
within a period of time not to exceed six (6) months from the issuance
of the requested R.O.W. permit, unless extended by the City.
d.
Any claim by applicant of technical incompatibility, inability to
use existing structure, or inability to collocate must be scientifically
demonstrated by the applicant, not disproved by City. Validity of
said claims by applicant is reserved within the sole discretion of
City.
e.
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.
f.
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.
g.
Ground mounted equipment is prohibited.
h.
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 28 cubic feet in volume.
i.
The provider shall upon completion of construction provide the City
with as-built drawings and a map showing the location of the facility
and equipment.
j.
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.
k.
Fewest Possible Small Wireless Facilities. Applicant shall minimize
the number of new proposed Small Wireless Facilities in the Public
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.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
The provider, or its agent or contractor, shall restore, repair and/or
replace any portion of the Public R.O.W. that is damaged or disturbed
by the provider's Communications Facilities, poles or work in
or adjacent to the Public R.O.W.
b.
If the provider fails to timely restore, repair or replace the Public
R.O.W. 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.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
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 R.O.W., including relocation of above-ground Communications
Facilities underground (consistent with the provisions of this chapter),
whenever the City has determined, in its sole discretion, that such
removal, relocation, change or alteration is necessary for the construction,
repair, maintenance or installation of any City improvement, the operations
of the City in, under or upon the Public R.O.W., or otherwise is in
the public interest. The provider shall be responsible to the City
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 City, the City will work in good faith to identify
a suitable alternative site and such removal or relocation shall not
require an additional permit.
b.
The City retains the right and privilege to cut or move any Communications
Facility, Pole or, support structure located within the Public R.O.W.
as the City may determine, in its sole discretion, to be necessary,
appropriate or useful in response to any public emergency. If circumstances
permit, the City 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 City 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 City and provider
to the extent practicable under the circumstances.
c.
A provider shall notify the City 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 City 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 it Communications Facilities,
poles and support structures until they are removed from the Public
R.O.W. unless the City 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 subsection, the City 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 City incurs
arising from the delay.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
Application Fees. All applications for approval and issuance of a
R.O.W. permit pursuant to this chapter shall be accompanied by a fee
as follows:
1.
For applications that do not include the installation of any new
structures within a Public Right-of-Way, the application fee shall
be $500 for up to five Communications Facilities with an additional
$100 for each Communications Facility beyond five.
2.
For applications that include the installation of a new structure
within a Public Right-of-Way, the application shall be $1,000 for
up to five Communications Facilities with an additional $100 for each
Communications Facility beyond five.
b.
Annual Fees. As per FCC guidance, an annual fee of $270 per small
wireless facility or per pole, per applicant, shall apply and be paid
in full up front and on an annual basis on or before January 1 of
each year the small wireless facility or pole is in service. A pro-rata
amount may be paid the first year, if the small wireless facility
or pole is put in service on any date after January 1.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
a.
In addition to the application fee, all applications for approval
and issuance of a R.O.W. permit shall be accompanied by an initial
escrow fee as follows:
b.
The escrow account deposits are required to pay for the costs of
professional services, including engineering, planning, legal and
other third-party professional consulting expenses connected with
the review of submitted materials, including any traffic engineering
review or other special analyses related to the City's review
of the materials submitted by the applicant and the preparation of
any reports or any necessary legal agreement regarding Public Rights-of-Way
use. An applicant is required to reimburse the City for all fees,
costs and expenses of third-party professionals and consultants incurred
and paid by the City for the review process of a R.O.W. permit application,
such as, but not limited to:
1.
Professional fees for reviews by third-party professionals or consultants
of applications, plans and accompanying documents;
2.
Issuance of reports or analyses by third-party professionals or consultants
to the City setting forth recommendations resulting from the review
of any documents submitted by the applicant;
3.
Charges for any telephone conference(s) or meeting(s), including
travel expenses, requested or initiated by the applicant, the applicant's
attorney or any of the applicant's experts or representatives;
4.
Review of additional documents submitted by the applicant and issuance
of reports or analyses relating thereto;
5.
Review or preparation of R.O.W. Use agreements, easements, deeds,
right-of-way municipal consent ordinances or resolutions and any and
all other like or similar documents; and
6.
Preparation for and attendance at all meetings by third-party professionals
or consultants serving the City, such as the Municipal Attorney, City
Engineer, City Planner, Consultant and/or other experts as required.
c.
The escrow account deposits shall be placed in a separate account
by the City's Chief Financial Officer at the request of the City
Clerk and an accounting shall be kept of each Applicant's deposit.
Thereafter:
1.
All third-party professional or consultant fees, costs, expenses
and charges shall be paid from the escrow account and charged to the
applicant;
(a)
Third-party professional or consultant fees shall not be disbursed
from escrow if they are for a service performed in the context of
an identical paid service between applicant and same third-party who
may otherwise be entitled to said fees.
2.
Upon either final denial of a R.O.W. permit application or upon issuance
of a R.O.W. permit, any moneys not expended for third-party professional
or consulting services shall be returned to the applicant within 90
days upon written request by the applicant and as authorized by the
City Council;
3.
If at any time during the application process 75% of the money originally
posted shall have been expended, the applicant shall be required to
replenish the escrow deposit to 100% of the amount originally deposited
by the applicant;
4.
No R.O.W. permit application shall be considered complete until such
time as the required escrow fee has been posted to guarantee payment
of third-party professional or consultant fees, costs, expenses and
charges;
5.
All payments charged to the escrow deposit shall be pursuant to vouchers
from the third-party professionals or consultants stating the hours
spent, the hourly rate and the fees, costs, expenses and charges incurred;
6.
Third-party professionals and consultants submitting charges pursuant
to this section shall be permitted to charge for such services at
the same rates as they would charge their private clients for like
or similar work provided that:
(a)
Professional fees are billed at rates that do not exceed such
professional fees as are customarily charged by other like professionals
and consultants performing similar work within Monmouth County; and
(b)
Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar
basis with no mark-up being permitted;
7.
The City shall render a written final accounting to the applicant
on the uses to which the escrow deposit was put. The written final
accounting shall include copies of all vouchers that were submitted
by third-party professionals and consultants and paid by the City.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
Notwithstanding anything else in the Code of the City of Asbury
Park, the installation of Communication Facilities and associated
equipment in the Public Right-of-Way either on existing or new poles
are permitted and considered a permitted use if the demonstration
of need to the satisfaction of the City's Radio Frequency Engineer
is presented and also if a Right-of-Way Use Agreement is entered into
and if a Right-of-Way Permit is obtained pursuant to this chapter.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
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 City,
including the provisions of Special Conditions for Wireless Telecommunications
Towers and Antennas.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
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 City 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 City, shall be replaced and superseded by the applicable terms
of this chapter.
[Added 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
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 4-13-2022 by Ord.
No. 2022-3; amended 7-12-2023 by Ord. No. 2023-28]
Violation of any of the provisions of this chapter shall be
a citation 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.
