[HISTORY: Adopted by the Borough Council of the Borough of
Girard 10-18-2021 by Ord. No. 748. Amendments noted where applicable.]
In the exercise of its police powers and pursuant to the authority
granted to the Borough under Act 50,[1] the Borough has jurisdiction to regulate uses of the right-of-way.
The purpose of this chapter is to provide the Borough with a process
for managing, and uniform standards for acting upon, requests for
the placement of small wireless facilities within the right-of-way
consistent with the Borough's obligation to promote the public
health, safety, and welfare; to manage the right-of-way; and to ensure
that the public's use is not obstructed or disturbed by the use
of the right-of-way for small wireless facilities. The Borough recognizes
the importance of wireless telecommunications facilities to provide
high-quality communications and internet access services to residents
and businesses within the Borough. The Borough also recognizes its
obligation to comply with applicable federal and state laws regarding
the placement of wireless telecommunications facilities in the right-of-way,
including, without limitation, the Telecommunications Act of 1996,
47 U.S.C. § 151 et seq., and Act 50, 53 P.S. §§ 11704.1
through 11704.11. This chapter shall be interpreted consistent with
those provisions.
[1]
Editor's Note: See 53 P.S. § 11704.1 et seq.
For the purposes of this chapter, the terms below shall have
the meanings given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in
the plural include the singular, and words in the singular include
the plural.
Any equipment serving or being used in conjunction with a
small wireless facility or wireless support structure, including but
not limited to utility or transmission equipment, power supplies,
generators, batteries, cables, equipment buildings, cabinets, and
storage sheds, shelters, or similar structures.
Telecommunications equipment that transmits and receives
electromagnetic radio signals used in the provision of all types of
wireless telecommunications services.
All applicable federal and state laws, regulations and standards
that comply with Act 50. The term shall also include all ordinances,
resolutions, or policies of the Borough regulating:
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.
Local zoning, land use, streets and sidewalks, right-of-way
and permitting ordinances or other local rules or regulations that
comply with Act 50.
A communications service provider that submits an application.
A formal request, including all required and requested documentation
and information, submitted by an applicant to the Borough for a wireless
permit.
The Borough of Girard, Erie County, Pennsylvania.
The person(s) or entity(s) selected by the Borough as responsible
for initial processing of the application.
To install, mount, maintain, modify, or replace small wireless
facilities on an existing utility pole or other wireless support structure.
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 [48 Stat. 1064, 47 U.S.C. § 153(51)].
A wireless provider.
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, Part 1, Appendix C (relating to the 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. (relating to historical
and museums).
Within an historic district created pursuant to the Act of June
13, 1961 (P.L. 282, No. 167),[1] entitled "An act authorizing counties, cities, boroughs,
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 Borough.
A natural person, firm, partnership, company, association,
trust, corporation, or other legal entity. The singular shall include
the plural, the plural shall include the singular; and the masculine
shall include the feminine and the neuter, whatever appropriate.
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 subsection.
That, 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.
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.
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 permit issued by the Borough pursuant to this chapter and
authorizing the placement or modification of a small wireless facility
of a design specified in the permit at a particular location within
the right-of-way and the placement or modification of any existing
wireless support structure to which the small wireless facility is
proposed to be attached.
The lawful holder of a wireless permit.
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 or entity which provides wireless services.
A freestanding structure, including a utility pole, municipal
pole, or other existing or proposed freestanding structure that could
support the placement or installation of a wireless facility if approved
by the Borough.
[1]
Editor's Note: See 53 P.S. § 8001 et seq.
A.
Applicability. Unless otherwise exempted, every applicant who wishes
to place a small wireless facility in the right-of-way or modify an
existing small wireless facility in the right-of-way must obtain a
wireless permit under this chapter.
B.
Exempt facilities.
(1)
The Borough shall not require an application for the following unless
the work involves excavation, closure of a sidewalk, or closure of
a vehicular lane in which case a permit shall still be required:
(a)
The installation, placement, maintenance, operation, or replacement
of micro wireless facilities that are strung on cables between existing
utility poles by or for a communications service provider authorized
to occupy the right-of-way, in compliance with the National Electrical
Safety Code. However, a micro wireless facility owner shall comply
with all applicable codes, and shall provide the Borough with written
notice at least 90 days prior to the installation, placement, maintenance,
operation, or replacement of a micro wireless facility. While an application
is not required for a micro wireless facility, they shall be subject
to all other provisions of this chapter.
(b)
Routine maintenance or repair work.
(c)
The replacement of small wireless facilities with small wireless
facilities that are substantially similar or the same size or smaller
and still qualify as a small wireless facility.
(2)
The exemptions from applications provided for herein shall not relieve
the party performing such work from compliance with the permitting
or application requirements that may otherwise apply pursuant to the
applicable codes of the Borough, including, but not limited to, permits
for excavation-related work.
A.
Application process.
(1)
Small wireless facilities shall be treated as a permitted use in
all areas of the Borough, except underground districts as established
and designated by the Borough from time to time, and shall be reviewed
by the Borough for conformity with all applicable codes.
(2)
Applications for small wireless facilities shall be submitted to
the Borough, or, if applicable, the Borough's designee. All applicants
shall submit both a paper copy and an electronic copy (in a searchable
format) of any application, as well as any amendments or supplements
to the application or responses to requests for information regarding
an application. An application is not complete until both the paper
and electronic copies are received.
(3)
A single applicant seeking to co-locate is permitted to submit a
consolidated application for co-location of up to 20 small wireless
facilities. An applicant, however, may not submit more than one consolidated
or 20 single applications for co-located small wireless facilities
in a thirty-day period. If the Borough receives more than one consolidated
application or 20 single applications within a forty-five-day period,
then the applicable timeframe for processing applications specified
in this chapter shall be extended by 15 days.
(4)
Applications are public records that may be subject to disclosure
under the Pennsylvania Right-to-Know Law.[1] The applicant must designate any portions of the application
materials that it reasonably believes contain proprietary or confidential
information by clearly and conspicuously marking each portion of such
materials accordingly. If the Borough determines that the information
is subject to disclosure, such determination shall be conclusive.
If the Borough determines that a right-to-know request asks for proprietary
or confidential information regarding a small wireless facility, then
the Borough shall notify the relevant applicant within five days of
receiving said request pursuant to the Right-to-Know Law. The applicant
and Borough shall use all reasonable efforts to coordinate a response
pursuant to the Right-to-Know Law. If the applicant determines that
the requested information is considered confidential or proprietary
information as defined by the Right-to-Know Law, or that any other
exemption applies, then the applicant shall notify the Borough within
five days of it receiving notification from the Borough. If the applicant
requests that the Borough deny a request pursuant to the Right-to-Know
Law, then the applicant shall be required to enter into an agreement
with the Borough indemnifying the Borough for any and all legal expenses
incurred by the Borough as a result of any challenge to the denial.
[1]
Editor's Note: See 65 P.S. § 67.101 et seq.
(5)
Application fees.
(a)
The applicant must pay an application fee for each application
or consolidated application pursuant to a fee schedule adopted by
the Borough as amended from time to time by resolution or otherwise.
Where no such fee schedule has been adopted, the applicant shall pay:
[1]
$500 for an application seeking approval for no more than five
co-located small wireless facilities and $100 for each co-located
small wireless facility beyond five.
[2]
$1,000 for an application seeking approval of a small wireless
facility that requires the installation of a new or replacement utility
pole.
(b)
Application fees are nonrefundable and will not be returned
to the applicant even where the applicant chooses not to proceed with
construction or installation of the small wireless facility.
(6)
In addition to the application process set forth herein, the applicant
shall be responsible, as may be required by law, to obtain any other
governmental or regulatory permits and approvals required for the
installation or modification of a small wireless facility. The Borough
shall not be liable as a result of accepting an application or issuing
a permit in the event that an applicant is prevented from placing
and/or maintaining its small wireless facility pursuant to this chapter.
(7)
Applications for small wireless facilities shall include the following:
(a)
Full and complete payment of all applicable permit application
fees.
(b)
A completed application form, to the extent the Borough may
adopt the same from time to time, signed by an authorized representative
of the applicant and made subject to all standard permit conditions
specified in this chapter.
(c)
In the absence of an application form, the applicant shall submit
an application packet consisting of a cover letter and all required
supporting documentation. The applicant shall detail the location
of the proposed site(s), all equipment and accessory equipment being
proposed as part of the small wireless facility, and shall certify
that the applicant has included all information required by the Borough
and by all applicable codes. The application packet shall be signed
by an authorized representative of the applicant. The cover letter
shall also include the applicant's name (including any corporate
or trade name), and the name, address, email address, and telephone
number of a local representative responsible for the application.
If the applicant is a wireless infrastructure provider, the name and
contact information for all wireless service providers that will use
the proposed small wireless facility must be provided. The applicant
shall also self-certify, subject to 18 Pa.C.S.A. § 4904,
that the filing and approval of the application is required by the
wireless provider to provide additional capacity or coverage for wireless
services.
(d)
The applicant's construction plans and drawings, including,
but not limited to, a description of the required work and renderings
of the proposed small wireless facility and the proposed site. Said
plans and drawings shall show all equipment being proposed as part
of the small wireless facility, detailed site plans showing the location
of the small wireless facility, and details regarding proposed construction
and/or excavations, if any. Photo simulations depicting the small
wireless facility from at least three locations near the proposed
site shall also be included.
[1]
If the small wireless facility is proposed for co-location on
an existing or replacement utility pole or wireless support structure
that currently supports existing attachments, the depiction shall
show the location and dimensions of all such attachments.
[2]
If the proposed small wireless facility will be installed on
a new or replacement utility pole or wireless support structure, the
depiction shall include the color, dimensions, material, and type
of utility pole or wireless support structure proposed.
[3]
The applicant's construction plans and drawings shall also
comply with and include any information required by the Borough's
Wireless Facilities Design Manual.
(e)
The manufacturer and model, proposed location, and physical
dimensions, including weight and volume, of each piece of equipment
proposed as part of the small wireless facility.
(f)
A written certification by a structural engineer licensed in
the Commonwealth of Pennsylvania confirming that the proposed small
wireless facility and wireless support structure are structurally
sound and shall not endanger public health and safety.
(g)
A seal and signature of a professional engineer licensed in
the Commonwealth of Pennsylvania and certifying compliance with all
local, state, and federal laws and regulations applicable to the proposed
small wireless facility, including applicable standards for radio
frequency emissions.
(h)
Certification of the application's compliance with all
requirements of this chapter.
(i)
Proof that the applicant has mailed to the owners of all property
within 150 feet of the proposed small wireless facility a notice that
the applicant is submitting an application to the Borough for placement
or modification of a small wireless facility in the right-of-way,
which notice must include:
(j)
A detailed request for, and explanation of the justification
in support of, any waiver requested from the requirements of this
chapter.
(k)
Application to install small wireless facility with new utility
pole.
[1]
Where an application is made to install a small wireless facility
with a new utility pole, the application must include sufficient information
to demonstrate that an applicant cannot meet the service reliability
and functional objectives of the application by co-locating on an
existing utility pole or municipal pole instead of installing a new
utility pole. To demonstrate this requirement, the applicant may submit
with its application a certification that it has made this determination
in good faith and shall also provide a supporting documented summary
of the basis for the determination. The applicant's determination
in this regard shall be based on whether the wireless provider can
meet the service objectives of the application by co-locating on an
existing utility pole or municipal pole on which:
[2]
An application shall not be administratively complete unless
all of the required elements set forth above are included in the application.
(8)
Timing of application review.
(a)
Within 10 business days of receiving an application, the Borough
will determine and notify the applicant, in writing, whether the application
is incomplete. If the Borough determines that an application is incomplete,
the written notice will specifically identify the information not
included with the application. The time for the Borough to process
the application shall restart on the date the applicant provides all
of the information required to complete the application. The processing
deadline may be tolled or extended by a written agreement of the applicant
and the Borough. Receipt of an application may occur on any business
day of the Borough.
(b)
The Borough shall process applications on a nondiscriminatory
basis, and applications shall be deemed approved if the Borough fails
to approve or deny the application within 60 days of receipt of a
complete application to co-locate and within 90 days of receipt of
a complete application to replace an existing utility pole or install
a new utility pole with small wireless facilities attached. A permit
associated with an application deemed approved under this subsection
shall be deemed approved if the Borough fails to approve or deny the
permit within seven business days after the date of filing the permit
application with the Borough unless there is a public safety reason
for the delay. An applicant shall provide written notice to the Borough
within 72 hours of when it discovers that a deemed approval has occurred.
Written notice may be received by USPS or courier.
(c)
Where the Borough denies an application because of defects found
therein, the applicant may cure the deficiencies identified by the
Borough and resubmit the application within 30 days of receiving the
written basis for the denial. No permit application fee is required
for an application resubmitted pursuant to this section. Following
resubmission, the Borough shall approve or deny the application within
30 days of the resubmission date. An applicant shall not be entitled
to more than one submission.
(9)
Once approved, the applicant shall be required to coordinate installation
of the small wireless facility to result in the least interference
with the public use of the right-of-way as possible.
B.
Placement. Small wireless facilities and accessory equipment shall
be located so as not to cause any physical or visual obstruction to
pedestrian or vehicular traffic, create safety hazards to pedestrians
and/or motorists, or to otherwise inconvenience public use of the
right-of-way as determined by the Borough in its sole discretion.
C.
Deadlines for completion. Any permittee granted a permit pursuant
to this chapter for purposes of co-location, modification, or replacement
of a small wireless facility, including installation of a new wireless
support structure with a small wireless facility attached, shall complete
the construction work that is the subject of said permit within one
year of the date the permit is issued. The Borough and any applicant
or permittee may agree, in writing, to extend the period of construction
for a period of greater than one year.
D.
Compensation for right-of-way use.
(1)
The holder of any permit issued for a small wireless facility pursuant
to this chapter shall pay the Borough an annual fee for use and occupancy
of the right-of-way. The fee shall be established pursuant to a fee
schedule adopted by the Borough as amended from time to time by resolution
or otherwise. Where no such fee schedule has been adopted, the fee
shall be $270 per small wireless facility or $270 per new utility
pole with a small wireless facility.
(2)
The permittee and/or owner of each small wireless facility shall
be invoiced for the first annual fee on the date the permit is issued,
prorated based on the proportion of the calendar year then remaining.
Subsequent invoicing shall be prospective and occur each January.
Said invoices shall be paid within 30 days of receipt thereof. Any
unpaid invoice shall be subject to interest accruing on the unpaid
amount at 18% per annum beginning on the 31st day from the date of
invoice until paid.
E.
Design guidelines and aesthetic requirements. Small wireless facilities
shall be designed, installed, operated, and maintained in compliance
with all design guidelines, aesthetic requirements, or concealment
measures adopted or amended by the Borough from time to time. Such
requirements, if any, are contained in the Wireless Facilities Design
Manual, a copy of which shall be kept on file in the Borough office.
The applicant's design shall comply with all other applicable
codes of the Borough, including the Borough's Zoning Ordinance.[2] The Wireless Facilities Design Manual may be amended by
resolution from time to time by a resolution of the Borough Council.
A.
Compliance.
(2)
If such applicable codes are modified, the permittee of the small
wireless facility shall bring such small wireless facility into compliance
with the modified applicable codes within three months of the effective
date of such applicable codes unless a different compliance term is
required by the controlling state or federal agency. Failure to bring
such small wireless facilities into compliance shall constitute grounds
for revocation of a permit and the removal of the small wireless facility
at the permittee's expense.
(3)
All small wireless facilities shall meet or exceed all applicable
standards set forth by the state or federal government, as well as
any applicable industry standard. In case of conflict, the most stringent
requirements shall prevail. All necessary certifications shall be
obtained by the applicant or permittee, as applicable, and shall be
provided to the Borough.
(4)
Small wireless facilities shall be installed and modified in a manner
that:
(a)
Ensures that placement of small wireless facilities on existing
structures is within the tolerance of those structures.
(b)
Ensures that the applicant's or permittee's use does
not inconvenience the public, interfere with the primary uses of the
right-of-way, or hinder the ability of the Borough or other government
entities to improve, modify, relocate, abandon, or vacate the right-of-way,
or any portion thereof, or to cause the improvement, modification,
relocation, vacation, or abandonment of facilities in the right-of-way.
(c)
Ensures that the applicant's or permittee's use does
not obstruct, endanger, or hinder travel or public safety within a
right-of-way, damage or interfere with other utility facilities located
within a right-of-way or obstruct or interfere with the legal use
of the right-of-way by the Borough or other utility.
(d)
Ensures that the Borough bears no risk or liability because
of the installation or modification of a small wireless facility.
(5)
Small wireless facilities in the public right-of-way requiring the
installation of a new wireless support structure shall not be located
immediately in front of any building entrance or exit.
(7)
No small wireless facility shall be installed, modified, placed,
operated, repaired, or maintained in a manner that causes, or is likely
to cause, interference with the Borough's infrastructure, equipment,
or services. Said infrastructure, equipment, and services include,
but are not limited to, the Borough's traffic signal system,
public safety radio system, electric distribution system, or Borough
communications system. If a small wireless facility causes such interference,
then the permittee, at its own expense, shall take all steps necessary
to immediately correct and eliminate the interference. The Borough
may terminate a permit for a small wireless facility based on such
interference if the interference is not remedied by the permittee.
B.
Attachment to municipal structures.
(1)
Subject to the requirements and processes of this chapter, Act 50,
and all applicable codes, applicants are permitted to co-locate small
wireless facilities on municipal poles. The Borough will allow co-location
on municipal poles using the process required under Act 50 and applicable
codes unless:
(a)
The small wireless facility would cause structural or safety
deficiencies to the municipal pole, in which case the Borough and
applicant shall work together for any make-ready work or modifications
or replacements that are needed to accommodate the small wireless
facility as otherwise required in this chapter; or
(b)
The Borough has reserved the space on the municipal pole for
other public purposes.
(2)
The Borough shall allow the co-location of small wireless facilities
to structures owned by the Borough in the following preferred order,
from most to least preferable:
(3)
If the small wireless facility applicant is proposing the co-location
of a small wireless facility on a lower preference structure, it shall
be a condition to the approval of the application that the small wireless
facility applicant provide evidence that co-location on a higher preference
structure or wireless support structure owned by a third party is
not technically feasible. The cost of co-locating on a higher preference
structure or wireless support structure shall not be included in evaluating
technical feasibility. Co-location of a small wireless facility on
a municipal pole shall not create or vest in any applicant, wireless
provider, or wireless service provider any ownership or property rights
in such municipal poles except as expressly provided for in this chapter
or pursuant to applicable law.
(4)
This chapter shall not be construed to require the Borough to construct,
retain, extend, place, or maintain any municipal pole or other municipal
facilities not needed for the Borough's own utility service requirements.
(5)
An applicant has no right to object to the Borough granting permission
to any party regarding use of a municipal pole.
(6)
Where applicable, an applicant's co-location of a small wireless
facility on a municipal pole shall be placed and maintained at all
times in accordance with the requirements, specifications, rules and
regulations of the latest edition of the National Electrical Safety
Code and subsequent revisions thereof, any governing authority having
jurisdiction, this chapter, and any reasonable design standards and
rules governing pole attachments in the Borough as the Borough may
adopt from time to time and shall be otherwise consistent with generally
accepted industry standards.
(7)
If requested by the Borough, each small wireless facility co-located
on a municipal pole shall be identified at all times by an identifying
marker/band/tag stating the name of person holding the permit. The
marker/band/tag shall, at a minimum, a) be reasonably durable under
the typical weather conditions in the area and b) have coloring unique
to the person holding the permit. If the Borough elects to require
marking/banding/tagging by the wireless permittee, the Borough shall
provide the permittee information concerning the type and color of
marker/band/tag to be used in satisfying the requirements of this
section. Such markers/bands/tags shall also be capable of being read
unaided from the ground by an adult of typical height and vision.
C.
Insurance. Each permittee and any person who owns or operates a small
wireless facility shall annually provide the Borough with a certificate
of insurance, in a form satisfactory to the Borough Solicitor, evidencing
general liability coverage in the minimum amount of $1,000,000 per
occurrence and property damage coverage in the minimum amount of $1,000,000
per occurrence covering the small wireless facility and naming the
Borough as an additional insured on each insurance policy. All permits
issued for location of a small wireless facility pursuant to this
chapter shall be deemed to be revoked in the event said insurance
policy is cancelled, expires, or ceases to exist.
D.
Outdated equipment. As part of the construction, modification, or
replacement of a small wireless facility, the permittee shall remove
any obsolete or abandoned equipment from the wireless support structure
or utility pole.
E.
Weather. All small wireless facilities shall be designed to withstand
the effects of wind, ice, water, and heat to the standard designed
by the American National Standards Institute as prepared by the engineering
departments of the Electronics Industry Association and Telecommunications
Industry Association (ANSI/TIA-222, as amended), or to the industry
standard applicable to the structure.
F.
Inspection reports. All permittees shall submit inspection reports
to the Borough upon request to ensure structural integrity and compliance
with all applicable codes. Inspection reports shall be delivered to
the Borough by the permittee within 30 days of request by the Borough.
These inspection reports may include, but are not limited to, descriptions
of routine maintenance or repair work, and descriptions of the physical
degradation of a small wireless facility.
G.
Maintenance. The following maintenance requirements shall apply:
(1)
All small wireless facilities shall be fully automated and unattended
on a daily basis and shall be visited only for maintenance, repair,
or replacement.
(2)
Such maintenance shall be performed to ensure the upkeep of the small
wireless facility, to promote the health, safety, and general welfare
of the Borough's residents, and to remain compliant with all
applicable codes.
(3)
All maintenance activities shall utilize nothing less than the best
available technology in accordance with the applicable standard in
the industry for preventing failures and accidents. Maintenance logs
shall be timely provided to the Borough upon request.
H.
Historic districts. No small wireless facility may be located within
75 feet of any property, or on a building or structure that is listed
on either the National or Pennsylvania Register of Historic Places,
or eligible to be so listed under the Pennsylvania Historic District
Act,[3] located within an historic district, or is included in
the official historic structures list maintained by the Borough.
[3]
Editor's Note: See 52 P.S. § 8001 et seq.
A.
Process.
(1)
If use of a small wireless facility and/or its dedicated accessory
equipment is to be discontinued, the permittee shall provide written
notice to the Borough of its intent to discontinue use and the date
when the use shall be discontinued. A small wireless facility and/or
dedicated accessory equipment not operated for a period of 12 months
shall be considered abandoned. Discontinued or abandoned small wireless
facilities, or portions of small wireless facilities, shall be removed
as follows:
(a)
All abandoned or unused small wireless facilities and accessory
equipment shall be removed within 90 days of the cessation of operations
at the site or receipt of notice that the small wireless facility
has been deemed abandoned by the Borough unless a time extension is
approved by the Borough.
(b)
If the small wireless facility or accessory equipment is not
removed within 90 days of the cessation of operations at a site, or
within any longer period approved by the Borough, the small wireless
facility and/or associated facilities and equipment may be removed
by the Borough and the cost of removal assessed against the owner
of the small wireless facility regardless of the owner's or operator's
intent to operate the small wireless facility in the future.
(c)
The Borough reserves the right to pursue all available remedies
under the law to ensure removal of the small wireless facility and
restoration of the site at the expense of the permittee. Any delay
by the Borough in taking action shall not invalidate the Borough's
right to take action.
(2)
With respect to a small wireless facility co-located on a municipal
pole, the Borough may abandon a municipal pole upon 30 days'
notice to the permittee. The permittee must remove or transfer all
facilities from abandoned municipal poles within the same 30 days
unless granted additional time by the Borough. The Borough will not
unreasonably withhold consent of such request for additional time.
The permittee shall post a decommissioning bond in the amount of 100%
of the total cost of decommissioning with the Borough. If the Borough
has no attachment(s) on said municipal pole and the permittee has
not removed or transferred its facilities therefrom, the Borough may,
in its sole discretion: 1) revoke the permit for that municipal pole;
or 2) remove the small wireless facilities at the permit holder's
expense, with no liability falling on the Borough except in the case
of gross negligence or willful misconduct.
B.
Required discontinuance.
(1)
The Borough may require the discontinuance of a small wireless facility
if:
(2)
Within 90 days of receipt of a notice of discontinuance from the
Borough, the permittee shall remove the small wireless facility and
any accessory equipment, including the utility pole and any wireless
support structures if the permittee's small wireless facilities
and accessory equipment are the only wireless facilities on the utility
pole. The Borough shall not be liable to the permittee or applicant
as a result of requiring the discontinuance of a small wireless facility
in the event that an applicant or permittee is prevented from placing
and/or maintaining its small wireless facility pursuant to this section.
A.
Each person that owns or operates a small wireless facility shall,
at its sole cost and expense, indemnify, defend and hold harmless
the Borough, its elected and appointed officials, employees and agents
at all times against any and all claims for personal injury, including
death, and property damage arising in whole or in part from, caused
by or connected with any act or omission of the person, its officers,
agents, employees or contractors arising out of, but not limited to,
the construction, installation, operation, maintenance or removal
of the small wireless facility. Each person that owns or operates
a small wireless facility, or holds a permit issued pursuant to this
chapter, shall defend any actions or proceedings against the Borough
in which it is claimed that personal injury, including death, or property
damage was caused by the permitting, construction, installation, operation,
maintenance, and/or removal of a small wireless facility. The obligation
to indemnify, hold harmless and defend shall include, but not be limited
to, the obligation to pay judgments, verdicts, injuries, liabilities,
damages, reasonable attorneys' fees, reasonable expert fees,
court costs and all other costs of indemnification.
B.
Further, a permittee shall repair all damage to the right-of-way,
or any other land so disturbed, directly caused by the activities
of the permittee or the permittee's contractors and return the
right-of-way in as good of condition as it existed prior to any work
being done in the right-of-way by the permittee. If the permittee
fails to make the repairs required by the Borough within 30 days after
written notice, the Borough may perform those repairs and charge the
permittee the reasonable, documented cost of the repairs plus a penalty
of $500. In the event an applicant or permittee has failed to pay
any costs invoiced by the Borough for repair work or penalties charged
pursuant to this section, the Borough shall not process any further
applications unless or until the applicant or permittee has paid the
amount assessed for the repair costs and the assessed penalty. Any
unpaid invoice shall be subject to interest accruing on the unpaid
amount at 18% per annum beginning on the 31st day from the date of
invoice until paid.
All wireless permits under this chapter are issued subject to
the following minimum conditions:
A.
The permittee shall at all times maintain compliance with this chapter
and all applicable codes.
B.
The permittee shall at all times maintain with the Borough accurate
contact information for the permittee and all wireless service providers
making use of the small wireless facility, which shall include, at
minimum, a name, phone number, mailing address, and email address
for at least one natural person.
C.
The Borough shall have the right to support, repair, disable, or
remove any components of a small wireless facility if the small wireless
facility threatens imminent harm to persons or property.
D.
The permittee shall undertake all reasonable efforts to avoid undue
adverse impacts to adjacent persons, properties and/or uses that may
arise from the construction, operation, maintenance, modification,
or removal of the small wireless facility.
E.
The permittee shall maintain all small wireless facilities and any
associated structures in a good condition and in a neat and clean
manner in accordance with all approved application documents and conditions
of approval.
F.
The permittee shall retain full and complete copies of all permits,
applications, and other regulatory approvals issued in connection
with the facility, which includes, without limitation, all conditions
of approval, approved plans, resolutions, and other documentation
associated with the permit or regulatory approval. In the event the
Borough cannot locate any such full and complete permits, applications,
or other regulatory approvals in its own official records, and the
permittee fails to retain full and complete records in the permittee's
files, any ambiguities or uncertainties that would be resolved through
an examination of the missing documents will be presumed resolved
against the permittee.
G.
Every small wireless facility shall at all times comply with applicable
FCC regulations governing radio frequency emissions, and failure to
comply with such regulations shall be treated as a material violation
of the terms of the permit.
H.
Make-ready work. For any municipal pole co-location application,
the Borough shall provide a good faith estimate for any make-ready
work, including any make-ready engineering costs necessary to enable
a municipal pole to support the requested co-location by a wireless
provider, including pole replacement, if necessary, within 60 days
after receipt of a complete application. The Borough shall also provide
the applicant with a schedule for completing any make-ready work.
Make-ready work, including pole replacement, shall be completed within
60 days of written acceptance of the good faith estimate by the applicant.
Any unpaid invoice sent by the Borough to an applicant for fees for
make-ready work shall be subject to interest accruing on the unpaid
amount at 18% per annum beginning on the 31st day from the date of
invoice until paid.
I.
Future use. The Borough may reserve space on an existing municipal
pole for future public uses in a documented and approved plan as adopted
at the time an application is filed. A reservation of space shall
not preclude co-location, the replacement of an existing utility pole
or the installation of a new utility pole. If the replacement of a
municipal pole is necessary to accommodate co-location and the reserved
future use, the wireless provider shall pay for the replacement municipal
pole, and the municipal pole shall accommodate the future use.
J.
An applicant or the applicant's designee shall ensure that a
contractor or subcontractor performing construction, reconstruction,
demolition, repair, or maintenance work on a small wireless facility
deployed under this chapter meets and attests to all of the following
requirements:
(1)
Maintain all valid licenses, registrations or certificates required
by the federal government, the commonwealth or the applicable local
government entity that is necessary to do business or perform applicable
work.
(2)
Maintain compliance with the Act of June 2, 1915 (P.L. 736, No. 338),
known as the "Workers' Compensation Act,"[1] the Act of December 5, 1936 (2nd Sp. Sess., 1937 P.L.
2897, No. 1), known as the "Unemployment Compensation Law,"[2] and bonding and liability insurance requirements as specified
in the contract for the project.
(3)
Has not defaulted on a project or been suspended on a project by
the federal government, the commonwealth, or a local government entity
within the previous three years.
(4)
Has not been convicted of a misdemeanor or felony relating to the
performance or operation of the business of the contractor or subcontractor
within the previous 10 years.
(5)
Has completed the United States Occupational Safety and Health Administration's
ten-hour safety training course or similar training sufficient to
prepare workers for any hazards that may be encountered during their
work on the small wireless facility.
(6)
Prior to the commencement of work, the contractor and/or subcontractor
shall provide the Borough with a certificate of insurance, in a form
satisfactory to the Borough Solicitor, evidencing general liability
coverage in the minimum amount of $1,000,000 per occurrence and property
damage coverage in the minimum amount of $1,000,000 per occurrence
covering the small wireless facility and naming the Borough as an
additional insured on each insurance policy. All permits issued for
location of a small wireless facility pursuant to this chapter shall
be deemed to be revoked in the event said insurance policy is cancelled,
expires, or ceases to exist.
(7)
The contractor and/or subcontractor shall, at its sole cost and expense,
indemnify, defend and hold harmless the Borough, its elected and appointed
officials, employees and agents at all times against any and all claims
for personal injury, including death, and property damage arising,
in whole or in part, from, caused by or connected with any act or
omission of the contractor and/or subcontractor, its officers, agents,
employees or contractors arising out of, but not limited to, the construction,
installation, operation, maintenance or removal of the small wireless
facility. The obligation to indemnify, hold harmless and defend shall
include, but not be limited to, the obligation to pay judgments, verdicts,
injuries, liabilities, damages, reasonable attorneys' fees, reasonable
expert fees, court costs and all other costs of indemnification.
K.
A permit issued pursuant to this chapter shall not be assigned or
otherwise transferred without the prior written approval of the Borough.
L.
Approval of an application shall authorize the applicant to, subject
to the permit requirements and the applicant's right to terminate
at any time, operate and maintain small wireless facilities and any
accessory equipment on a utility pole covered by the permit for a
period of not less than five years, which shall be renewed for two
additional five-year periods if the applicant is in compliance with
the criteria set forth in Act 50[3] or applicable codes consistent with Act 50 and the applicant
has obtained all necessary consent from the utility pole owner.
[3]
Editor's Note: See 53 P.S. § 11704.1 et seq.
The Borough may revoke a wireless permit for failure to comply
with the conditions of the permit or applicable codes after providing
adequate notice to the permittee and allowing the permittee an opportunity
to cure any noncompliance. Within 60 days of suspension or revocation
of a permit due to noncompliance with Act 50 or other applicable codes,
the applicant shall remove the small wireless facility and any accessory
equipment, including the utility pole and any wireless support structures
if the applicant's small wireless facilities and accessory equipment
are the only wireless facilities on the utility pole. 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 accessory
equipment, including the utility pole and any wireless support structures
if the applicant's small wireless facilities and accessory equipment
are the only wireless facilities on the utility pole.
If a permittee removes or relocates a small wireless facility
from the right-of-way under this chapter, the permittee must restore
the right-of-way to its prior condition in accordance with Borough
specifications. If the permittee fails to make the restorations required
by this chapter, the Borough at its option may do such work. In that
event, the permittee shall pay to the Borough, within 30 days of billing
thereof, all costs and expenses incurred by the Borough in restoring
the right-of-way. Any unpaid invoice shall be subject to interest
accruing on the unpaid amount at 18% per annum beginning on the 31st
day from the date of invoice until paid.
A.
This chapter shall be enforced by the Manager of the Borough or Council-appointed
person. If it is determined that any person has violated this chapter,
then a notice of violation shall be issued by the Borough Manager
or Council-appointed person describing the violation and a time period
for compliance. If the person to whom the notice of violation is issued
fails to comply as directed, the Borough Manager or Council-appointed
person shall order the discontinuance of noncompliance and may pursue
any other enforcement remedies available at law or equity.
B.
Any person who has violated the provisions of this chapter, upon
being found liable therefor in a civil enforcement proceeding commenced
by the Borough, shall pay a judgment of not more than $600 plus all
court costs, including reasonable attorney fees incurred by the Borough
as a result thereof. No judgment shall commence or be imposed, levied
or payable until the date of the determination of a violation by the
Magisterial District Judge. If the defendant neither pays nor timely
appeals the judgment, the Borough may enforce the judgment pursuant
to the applicable rules of civil procedure. Each day that a violation
continues shall constitute a separate violation.
C.
Nothing herein contained shall prevent the Borough from taking such
other lawful action as is necessary to prevent or remedy any violation.
