[HISTORY: Adopted by the Borough Council of the Borough of
Hillsdale 7-11-2023 by Ord. No. 23-13. Amendments noted where applicable.]
A.
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,[1] are incorporated herein and are made apart hereof.
[1]
Editor's Note: See 47 U.S.C.A. § 609 et seq.
B.
All definitions of the words, terms and phrases that are set forth
in the portion of the Middle-Class Tax Relief and Job Creation Act
of 2012, P.L. 112-96, as codified in 47 U.S.C. § 455, are
incorporated herein and are 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 are made apart hereof.
D.
All of the definitions of words, terms and phrases that are set forth
in the Code of Federal Regulations at 47 CFR 1.6002, as amended, are
incorporated herein and are made a part hereof.
E.
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
SMALL WIRELESS FACILITY
SMART POLE
UTILITY POLE
In addition to the foregoing, the following words, terms and phrases
shall have the meanings indicated unless an alternate meaning clearly
is discernable from the context in which the word, term or phrase
is used:
"Personal wireless services," as defined in 47 U.S.C. § 332(c)(7)(C),
as supplemented and/or as amended.
The surface, the airspace above the surface and the area
below or along the surface of any street, road, highway, lane, alley,
boulevard or drive, including the sidewalk, shoulder and area for
utilities owned by the Borough of Hillsdale within an easement to
the public or other easement owned by the Borough of Hillsdale.
"Small wireless facility," as defined in the Code of Federal
Regulations at 47 CFR 1.6002(1), as supplemented and/or as amended.
Small wireless facility means a wireless facility that meets both
of the following qualifications: (i) each antenna is located inside
an enclosure not to exceed 45 feet in height and be 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
and not exceed 45 feet in height. 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.
A decorative utility pole that conceals, disguises or camouflages
one or more small wireless facility installation(s) and may include
other features such as street lighting, 911 call service access, public
access Wi-Fi and surveillance cameras. A smart pole must allow for
multiple occupants and allow space for municipal use for other services
and/or equipment. Smart poles shall neither have external latches,
external hinges, nor external cabling. The pole should be made of
an inherently rust-resistant material (i.e., aluminum alloys or stainless
steel) and not exceed 45 feet in height.
A wooden or metal pole that is used by public utilities to
support electrical wires, telephone wires, coaxial cables, fiber-optic
cables and like and similar appurtenances.
F.
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.
A.
No person shall place a small wireless facility and/or smart pole
in any right-of-way without first filing a small wireless facility
siting permit application, in the form and in accordance with the
procedures specified herein, with the Borough Clerk and obtaining
a siting permit, except as otherwise may be provided in this chapter.
Upon approval of a siting permit application, the siting permit authorizing
placement of a small wireless facility and/or smart pole in a public
right-of-way shall not be issued by the Borough Clerk unless:
(1)
All siting permit application fees and escrow fees, as established
herein, have been paid; and
(2)
All other governmental permits or other governmental approvals that are required for the deployment(s) proposed by the applicant's siting permit application under the New Jersey Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq., and the administrative regulations adopted thereunder, Ch. 260, Article II, Openings and Excavations, of the Code of the Borough of Hillsdale, and by any other applicable federal, state or municipal law have been issued by the appropriate issuing authority therefor to the applicant and the applicant has supplied copies of such other permits or approvals to the Borough Clerk for inclusion with the applicant's application documents; and
(3)
The applicant has entered into a right-of-way use agreement, the
approved form of which is set forth in Appendix "A"[1] to this chapter, with the Borough. The approved form of
right-of-way use agreement may from time-to-time be revised, supplemented
or otherwise amended or replaced. All such revisions, supplements,
amendments or replacements shall be approved by resolution of Borough
Council. The Borough Clerk shall maintain on file the currently approved
right-of-way use agreement version and shall provide a copy to all
siting permit applicants. Minor deviations to the terms and conditions
that are set forth in the approved form of right-of-way use agreement
may be approved by Borough Council at the time that it grants consent
to use a right-of-way to a siting permit applicant.
[1]
Editor's Note: Appendix A is on file in the Borough offices.
B.
No siting permit authorizing placement of a small wireless facility
and/or smart pole in a public right-of-way shall be issued to any applicant
unless Borough Council, in the manner prescribed by applicable laws
of the State of New Jersey, has granted to the siting permit applicant
its consent to use public rights-of-way within the Borough. No siting
of a small wireless facility and/or smart pole shall be permitted
within 200 feet of another small wireless facility and/or smart pole
unless it can be established by clear and convincing evidence that
co-location on an existing or previously approved small wireless facility
and/or smart pole is not feasible. Any claims of carriers of technical
incompatibility or inability to collocate need to be proven by the
carrier. Responsibility for judging proof of said claims lies solely
with the Borough and/or or its chosen representative(s).
A.
No application for a small wireless facility and/or smart pole siting permit shall be approved if the application proposes the deployment of a small wireless facility upon an existing structure in a right-of-way unless the structure is one of the types of smart poles that are set forth in § 244-1, Definitions, to this chapter and such smart pole specifically is designed to accommodate the reasonable and customary equipment necessary for a small wireless facility installation which will accommodate at least three carriers per small wireless facility deployment. Any exception to this requirement must be accompanied by clear and convincing evidence that co-location on an existing or previously approved small wireless facility is not feasible. Any claims of carriers of technical incompatibility or inability to collocate need to be proven by the carrier. Responsibility for judging proof of said claims lies solely with the Borough and/or or its chosen representative(s).
B.
No small wireless facility shall be installed upon any new structure within any right-of-way unless the new structure is one of the preapproved types of smart poles that are identified in § 244-1, Definitions, to this chapter. A replacement pole is a new structure.
C.
No application for a small wireless facility and/or smart pole siting
permit shall be approved if the application proposes the deployment
of a small wireless facility in an area other than those specific
locations set forth within the Borough's wireless siting plan,
which can be found on file with the office of the Borough Clerk. All
small wireless facilities must be placed within a twenty-five-foot
radius of those specific locations set forth on the Borough's
wireless siting plan. No more than one smart pole shall be permitted
per intersection or block if the siting plan calls for the deployment
of a small wireless facility at any location other than an intersection,
unless otherwise specified within the wireless siting plan. No smart
pole shall be located within 200 feet of any other smart pole.
A.
Application filing. An application for a siting permit to place one
or more small wireless facilities and/or smart poles within a right-of-way
shall be made on forms which shall be available from the office of
the Borough Clerk. The application, along with the required application
fee and the required escrow fee, shall be filed with the Borough Clerk.
Immediately upon receipt of an application, the Borough Clerk shall
provide copies of the application and all supporting documents that
were submitted by the applicant with the application, to the Borough
Engineer, the Construction Official and the Borough Solicitor.
B.
Application form. The small wireless facility and/or smart pole siting
permit application shall be made by a provider of personal wireless
services, or its duly authorized representative as noted in a notarized
statement from the provider of personal wireless services on whose
behalf the representative is acting, and shall contain the following:
(1)
The applicant's name, address, telephone number and email address;
(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 general description of the proposed small wireless facility, existing
structure and new structure work to be performed. Color photographs
shall be provided depicting the current state of the location where
the installation is proposed. Additionally, rendering of the proposed
installation shall be provided for each location the small wireless
facility is proposed. The scope and detail of such description shall
be appropriate to the nature and character of the work to be performed,
with particular emphasis on those matters, including, but not limited
to, subservice utilities likely to be affected or impacted by the
work proposed along with a description of such other governmental
permits or approvals as may be required by applicable law with respect
to the proposed installation(s) and a description of such other permits
or approvals for which the applicant has applied;
(4)
Authorization for any consultant acting on behalf of the applicant
to speak with the Borough, or a designee of the Borough, on the area
of consultation for the applicant even if the applicant cannot be
available;
(5)
Verification from an appropriate professional that the small wireless
facility shall comply with all applicable federal, state and local
laws, administrative regulations and codes;
(6)
The applicant shall certify that they shall market the availability
of approved facilities to all major wireless carriers in the marketplace.
The applicant shall further certify that they will encourage, manage
and coordinate the location and placement of any interested carrier's
equipment on their structure.
C.
An applicant seeking to deploy a network of small wireless facilities,
all of which are to be located in rights-of-way, may file a batched
application for up to 25 small wireless facilities and receive a single
siting permit for multiple small wireless facilities.
A.
The Borough shall review the application for a small wireless facility
and/or smart pole siting permit in light of its conformity with the
provisions of this chapter, and shall approve a siting permit on nondiscriminatory
terms and conditions subject to the following requirements:
(1)
Within 10 days of receiving an application, the Borough Clerk shall
determine and notify the applicant:
(a)
Whether the application is complete;
(b)
If the application is incomplete, what specific information
is missing; and
(c)
Whether the deployment of the Small Wireless Facilities as proposed
requires the applicant to apply for other permits, such as a street
opening permit or construction permit, for which the applicant has
not yet applied. No small wireless facility siting permit application
shall be deemed complete until the applicant has applied for all other
permits and approvals required by all other laws and regulations that
are applicable to the applicant's proposed small wireless facility
deployment.
B.
The Borough shall make its final decision to approve or deny the
application within the following time frames:
(1)
Sixty days from the submission of a complete application to install
a small wireless facility upon one or more existing structures.
(2)
Ninety days from the submission of a complete application to install
a small wireless facility upon one or more new structures.
(3)
Ninety days from the submission of a complete batched application
to install small wireless facilities upon both existing and new structures.
|
The time frames described above by which an application shall
be either approved or denied may be extended by mutual consent of
the applicant and Borough. Such consent shall be set forth on a form
for such purposes which shall be available from the office of the
Borough Clerk. Such consent on behalf of the Borough shall be exercised
by the Mayor which shall not be reasonably withheld.
|
C.
The Borough Clerk shall notify the applicant in writing of the final
decision, and if the application is denied specify the basis for denial;
and cite such specific provisions, as may be recommended by the Borough
Solicitor, from federal, state, or local laws, administrative regulations
or codes as to why the application was denied.
D.
Notwithstanding an initial denial, the applicant may cure any deficiencies
identified by the Borough within 30 days of the denial without paying
an additional application fee, provided the Borough Clerk shall approve
or deny the revised application within 30 days of receipt of the amended
application which shall be limited to the deficiencies specified in
the original notice of denial.
E.
If the Borough fails to act upon an application within the time frames
prescribed by this section, the applicant may provide written notice
to the Borough that the application review and decision period has
lapsed. Upon receipt of such notice, Borough Council, by resolution
adopted no later than its second regularly scheduled public meeting
next following receipt of the notice, shall either deny the application
or direct that the siting permit shall be approved and issued. Nothing
in this subsection is intended in any way to impact any other right
or remedy that may be available to the applicant under applicable
federal or state law if the Borough fails to act upon an application
within the time frames prescribed by this section.
F.
A siting permit from the Borough authorizes an applicant to undertake
only certain activities in accordance with this chapter. No approval
or consent granted, or siting permit issued, pursuant to this chapter
shall confer any exclusive right, privilege, license or franchise
to occupy or use any public right-of-way within the Borough for the
delivery of telecommunications services or for any other purpose.
No siting permit issued under this chapter shall be valid for
a period longer than 12 months unless construction has actually begun
and continuously and diligently is pursued to completion. Upon written
request from the applicant, the Mayor, upon consultation with the
Construction Official, may extend the siting permit for a period of
up to 12 months so long as construction has begun at the time that
the applicant's request for an extension is made.
A small wireless facility siting permit shall not be required
for:
A.
Routine maintenance of a small wireless facility and/or smart pole.
B.
The replacement of a small wireless facility and/or smart pole with
another small wireless facility and/or smart pole that is substantially
similar or smaller in size, weight and height to the small wireless
facility that is being replaced.
C.
Provided, however, that on a location where the Borough and/or another
provider has placed equipment or facilities, any routine maintenance
or replacement that is done shall not occur until written authorization
from the Borough and/or the other provider, as the case may be, to
proceed is provided to the Borough, which authorization to proceed
shall not unreasonably be withheld by the Borough and/or the other
provider.
D.
Provided further that if the replacement of a small wireless facility
and/or smart pole with another small wireless facility includes replacement
of the structure to which the small wireless facility and/or smart
pole is attached then an application for a siting permit shall be
required.
A.
Application fees. All applications for approval and issuance of a
small wireless facility and/or smart pole siting 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 right-of-way the application fee shall be $500
for up to five small wireless facilities and/or smart pole with an
additional $100 for each small wireless facility and/or smart pole
beyond five.
(2)
For applications that include the installation of a new structure
within a right-of-way the application fee shall be $1,000 for up to
five small wireless facilities with an additional $100 for each small
wireless facility beyond five.
B.
Other fees. No pole attachment fees will be assessed by the Borough
unless and until an applicant applies for pole attachment to a Borough-owned
pole.
C.
Annual rate. Applicant/permit holder shall pay a $270 annual ROW
maintenance rate per small wireless facility, starting on the anniversary
of the permit issuance.
A.
In addition to the application fee, all applications for approval
and issuance of a small wireless facility and/or smart pole siting
permit shall be accompanied by an 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 Borough's review
of the materials submitted by the applicant and the preparation of
any reports or any necessary legal agreement regarding rights-of-way
use. An applicant is required to reimburse the Borough for all fees,
costs and expenses of third-party professionals and consultants incurred
and paid by the Borough for the review process of a small wireless
facility and/or smart pole siting 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 Borough 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 right-of-way 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 Borough, such as the Borough Attorney,
Borough Engineer and Borough Planner or other experts as required.
C.
The escrow account deposits shall be placed in a separate account
by the Borough's Chief Financial Officer at the request of the
Borough 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; 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 small wireless facility and/or smart
pole siting permit application or upon issuance of a small wireless
facility and/or smart pole siting 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 Borough Council;
(3)
If at any time during the application review 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 small wireless facility and/or smart pole siting 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 Bergen 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 Borough 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 Borough.
An applicant whose siting permit includes the installation of any new smart pole structure of any of the types that are defined in § 244-1, Definitions, to this chapter shall provide the Borough with access to any of the technological features that are a component the new smart pole structure such as, for example, public access Wi-Fi, 911 call service or security cameras, before the applicant offers such access to any other person or entity. Should the Borough decide to utilize any such technological features then the Borough, on an annual basis, shall reimburse the applicant or the subsequent owner of the structure, the costs, on a dollar-for-dollar basis, of providing the Borough with such access. Such costs shall be limited to the costs of providing electricity to the components used by the Borough and the costs of any repairs required to be made to the components used by the Borough, unless the repair costs are necessitated by the acts of the applicant or subsequent owner of the structure, without regard to whether such acts are negligent or intentional.
