[HISTORY: Adopted by the Borough Council
of the Borough of Conway 4-4-2001 by Ord. No. 468, approved 4-4-2001. Amendments
noted where applicable.]
The Telecommunications Act of 1996 affirmed
the Borough of Conway's authority concerning the placement, construction
and modification of wireless telecommunications facilities. The Borough
Council of the Borough of Conway finds that wireless telecommunications
facilities may pose a unique hazard to the health, safety, public
welfare and environment of the Borough of Conway and its inhabitants.
The Borough also recognizes that facilitating the development of wireless
service technology can be an economic development asset to the Borough
and of significant benefit to the Borough and its residents. In order
to ensure that the placement, construction or modification of wireless
telecommunications facilities is consistent with the Borough's land
use policies, the Borough is adopting a single, comprehensive, wireless
telecommunications facilities application and permit process. The
intent of this chapter is to minimize the negative impact of wireless
telecommunications facilities, establish a fair and efficient process
for review and approval of applications, assure an integrated, comprehensive
review of environmental impacts of such facilities and protect the
health, safety and welfare of the Borough of Conway.
This chapter may be known and cited as the "Wireless
Telecommunications Facilities Siting Law" for the Borough of Conway.
A.
If any word, phrase, sentence, part, section, subsection
or other portion of this chapter or any application thereof to any
person or circumstance is declared void, unconstitutional or invalid
for any reason, then such word, phrase, sentence, part, section, subsection
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional or invalid,
shall remain in full force and effect.
B.
Any special use permit issued under this chapter shall
be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect, by
a competent authority, or is overturned by a competent authority,
the permit shall be void in total, upon determination by the Borough
Council.
A.
For purposes of this chapter, and where not inconsistent
with the context of a particular section, the defined terms, phrases,
words, abbreviations and their derivations shall have the meaning
given in this section. When not inconsistent with the context, words
in the present tense include the future tense, words used in the plural
number include words in the singular number, and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
B.
ACCESSORY FACILITY OR STRUCTURE
ANTENNA
APPLICANT
APPLICATION
BOROUGH
COLLOCATION
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
COMMONWEALTH
COMPLETED APPLICATION
COUNCIL
DIRECT-TO HOME SATELLITE SERVICES or DIRECT BROADCAST SERVICE
or DBS
EPA
FAA
FCC
FREESTANDING TOWER
HEIGHT
NIER
PERSON
PERSONAL WIRELESS FACILITY
PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS
SERVICE or PCS
SPECIAL USE PERMIT
TELECOMMUNICATIONS
TELECOMMUNICATIONS SITE
TELECOMMUNICATIONS STRUCTURE
TEMPORARY
WIRELESS TELECOMMUNICATIONS FACILITIES or TELECOMMUNICATIONS
TOWER or TELECOMMUNICATIONS SITE or PERSONAL WIRELESS FACILITY
As used in this chapter, the following terms shall
have the meanings indicated:
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
A system of electrical conductors that transmits or receives
electromagnetic waves or radio frequency signals. Such waves shall
include, but not be limited to, radio, television, cellular, paging,
personal telecommunications services (PCS) and microwave telecommunications.
Any person submitting an application to the Borough of Conway
for a special use permit for wireless telecommunications facilities.
The form approved by the Council, together with all necessary
and appropriate documentation that an applicant submits in order to
receive a special use permit for wireless telecommunications facilities.
The Borough of Conway, Pennsylvania.
The use of the same telecommunications tower or structure
to carry two or more antennas for the provision of wireless services
by two or more persons or entities.
Shall have the meaning in this chapter and any special use
permit granted hereunder as is defined and applied under the Pennsylvania
Uniform Commercial Code (UCC).[1]
The Commonwealth of Pennsylvania.
An application that contains all information and/or data
necessary to enable the Council to evaluate the merits of the application
and to make an informed decision with respect to the effect and impact
of wireless telecommunications facilities on the Borough in the context
of the permitted land use for the particular location requested.
The Borough Council of the Borough of Conway.
Only programming transmitted or broadcast by satellite directly
to subscribers' premises without the use of ground receiving equipment,
except at the subscribers' premises or in the uplink process to the
satellite.
State and/or Federal Environmental Protection Agency or its
duly assigned successor agency.
The Federal Aviation Administration or its duly designated
and authorized successor agency.
The Federal Communications Commission or its duly designated
and authorized successor agency.
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest or any other entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Borough.
The transmission and reception of audio, video, data and
other information by wire, radio frequency, light and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
In relation to all aspects and components of this chapter,
something intended to, or that does, exist for fewer than 90 days.
A structure, facility or location designed, or intended to
be used as, or used to support, antennas. It includes, without limit,
freestanding towers, guyed towers, monopoles and similar structures
that employ camouflage technology, including, but not limited to,
structures such as a multistory building, church steeple, silo, water
tower, sign or other similar structures intended for transmitting
and/or receiving antenna or the functional equivalent of such. It
is a structure intended for transmitting and/or receiving radio, television,
cellular, paging, 911, personal telecommunications services, commercial
satellite services or microwave telecommunications, but excluding
those used exclusively for the Borough's fire, police and other dispatch
telecommunications, or exclusively for private radio and television
reception and private citizen's bands, amateur radio and other similar
telecommunications.
[1]
Editor's Note: See 13 Pa.C.S.A. § 1101
et seq.
In order to ensure that the placement, construction
and modification of wireless telecommunications facilities protects
the Borough's health, safety, public welfare, environmental features
and other aspects of the quality of life specifically listed elsewhere
in this chapter, the Borough Council hereby adopts an overall policy
with respect to a special use permit for wireless telecommunications
facilities for the express purpose of achieving the following goals:
A.
Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities.
B.
Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent.
C.
Establishing reasonable time frames for granting or
not granting a special use permit for wireless telecommunications
facilities, or recertifying or not recertifying, or revoking the special
use permit granted under this chapter.
D.
Promoting and encouraging, wherever possible, the
sharing and/or collocation of wireless telecommunications facilities
among service providers.
E.
Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner as to minimize adverse aesthetic impacts to the land,
property, buildings and other facilities adjacent to, surrounding
and in generally the same area as the requested location of such wireless
telecommunications facilities.
A.
All applicants for a special use permit for wireless
telecommunications facilities or any modification of such facility
shall comply with the requirements set forth in this section. The
Council is the officially designated agency or body of the community
to whom applications for a special use permit for wireless telecommunications
facilities must be made and that is authorized to review, analyze,
evaluate and make decisions with respect to granting or not granting,
recertifying or not recertifying or revoking special use permits for
wireless telecommunications facilities. The Council may, at its discretion,
delegate or designate other official agencies of the Borough to accept,
review, analyze, evaluate and make recommendations to the Council
with respect to the granting or not granting, recertifying or not
recertifying or revoking of special use permits for wireless telecommunications
facilities.
B.
An application for a special use permit for wireless
telecommunications facilities shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information. The landowner, if different than the applicant,
shall also sign the application. At the discretion of the Council,
any false or misleading statement in the application may subject the
applicant to denial of the application without further consideration
or opportunity for correction.
C.
Applications not meeting the requirements stated herein
or which are otherwise incomplete may be rejected by the Council.
D.
The applicant shall include a statement in writing:
(1)
That the applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner, and in compliance
with all conditions of the special use permit, without exception,
unless specifically granted relief by the Council in writing, as well
as all applicable and permissible local codes, ordinances and regulations,
including any and all applicable county, state and federal laws, rules
and regulations.
(2)
That the construction of the wireless telecommunications
facilities is legally permissible, including, but not limited to,
the fact that the applicant is authorized to do business in the Commonwealth
of Pennsylvania.
E.
No wireless telecommunications facilities shall be
installed or constructed until the site plan is reviewed and approved
by the Council, and the special use permit has been issued.
F.
All applications for the construction or installation
of new wireless telecommunications facilities shall be accompanied
by a report containing the information hereinafter set forth. The
report shall be signed by a licensed professional engineer registered
in the Commonwealth. Where this section calls for certification, such
certification shall be by a qualified Commonwealth of Pennsylvania
licensed professional engineer acceptable to the Borough, unless otherwise
noted. The application shall include, in addition to the other requirements
for the special use permit, the following information:
(1)
Documentation that demonstrates the need for the wireless
telecommunications facility to provide service primarily within the
Borough.
(2)
Name, address and phone number of the person preparing
the report.
(3)
Name, address and phone number of the property owner,
operator and applicant, to include the legal form of the applicant.
(4)
Postal address and Tax Map parcel number of the property.
(5)
Zoning district or designation in which the property
is situated.
(6)
Size of the property stated both in square feet and
lot line dimensions, and a diagram showing the location of all lot
lines.
(7)
Location of nearest residential structure.
(8)
Location of nearest habitable structure.
(9)
Location, size and height of all structures on the
property which is the subject of the application.
(10)
Location, size and height of all proposed and existing
antennas and all appurtenant structures.
(11)
Type, locations and dimensions of all proposed and
existing landscaping and fencing.
(12)
The number, type and design of the telecommunications
tower(s) antenna(s) proposed and the basis for the calculations of
the telecommunications tower's capacity to accommodate multiple users.
(13)
The make, model and manufacturer of the tower and
antenna(s).
(14)
A description of the proposed tower and antenna(s)
and all related fixtures, structures, appurtenances and apparatus,
including height above preexisting grade, materials, color and lighting.
(15)
The frequency, modulation and class of service of
radio or other transmitting equipment.
(16)
Transmission and maximum effective radiated power
of the antenna(s).
(17)
Direction of maximum lobes and associated radiation
of the antenna(s).
(18)
Applicant's proposed tower maintenance and inspection
procedures and related system of records.
(19)
Certification that NIER levels at the proposed site
are within the threshold levels adopted by the FCC.
(20)
Certification that the proposed antenna(s) will not
cause interference with existing telecommunications devices, though
the certifying engineer need not be approved by the Borough.
(21)
A copy of the FCC license applicable for the use of
wireless telecommunications facilities.
(22)
Certification that a topographic and geomorphologic
study and analysis has been conducted and that, taking into account
the subsurface and substrata, and the proposed drainage plan, the
site is adequate to assure the stability of the proposed wireless
telecommunications facilities on the proposed site, though the certifying
engineer need not be approved by the Borough.
(23)
Propagation studies of the proposed site and all adjoining
planned, proposed, in-service or existing sites.
(24)
Applicant shall disclose in writing any agreement
in existence prior to submission of the application that would limit
or preclude the ability of the applicant to share any new telecommunications
tower that it constructs.
G.
In the case of a new telecommunications tower, the
applicant shall be required to submit a written report demonstrating
its efforts to secure shared use of existing telecommunications tower(s)
or use of existing buildings or other structures within the Borough.
Copies of written requests and responses for shared use shall be provided
to the Council.
H.
The applicant shall furnish written certification
that the telecommunications facility, foundation and attachments are
designed and will be constructed to meet all local, county, state
and federal structural requirements for loads, including wind and
ice loads.
I.
The applicant shall furnish written certification
that the wireless telecommunications facilities will be grounded and
bonded so as to protect persons and property and installed with appropriate
surge protectors.
J.
The applicant shall furnish a visual impact assessment,
which shall include:
(1)
A "Zone of Visibility Map," which shall be provided
in order to determine locations where the tower may be seen.
(2)
Pictorial representations of "before" and "after"
views from key viewpoints both inside and outside of the Borough,
including but not limited to state highways and other major roads;
state and local parks; other public lands; historic districts; preserves
and historic sites normally open to the public; and from any other
location where the site is visible to a large number of visitors,
travelers or residents. The Council, acting in consultation with its
consultants or experts, will provide guidance concerning the appropriate
key sites at a preapplication meeting.
(3)
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties
and streets.
K.
Any and all representations made by the applicant
to the Council, on the record, during the application process, whether
written or verbal, shall be deemed a part of the application and may
be relied upon in good faith by the Council.
L.
The applicant shall, in a manner approved by the Council,
demonstrate and provide in writing and/or by drawing how it shall
effectively screen from view its proposed wireless telecommunications
facilities base and all related facilities and structures.
M.
All utilities at a wireless telecommunications facilities
site shall be installed underground and in compliance with all laws,
rules and regulations of the Borough, including specifically, but
not limited to, the National Electrical Safety Code and the National
Electrical Code where appropriate. The Council may waive or vary the
requirements of underground installation of utilities whenever, in
the opinion of the Council, such variance or waiver shall not be detrimental
to the health, safety, general welfare and environment, including
the visual and scenic characteristics of the area.
N.
All wireless telecommunications facilities shall contain
a demonstration that the facility be sited so as to have the least
adverse visual effect on the environment and its character, on existing
vegetation and on the residences in the area of the wireless telecommunications
facilities sites.
O.
Both the wireless telecommunications facility and
any and all accessory or associated facilities shall maximize use
of building materials, colors and textures designed to blend with
the structure to which it may be affixed and/or to harmonize with
the natural surroundings; this shall include the utilization of stealth
or concealment technology as required by the Borough.
P.
At a telecommunications site, an access road and parking
shall be provided to assure adequate emergency and service access.
Maximum use of existing roads, whether public or private, shall be
made to the extent practicable. Road construction shall at all times
minimize ground disturbance and vegetation-cutting. Road grades shall
closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion.
Q.
A person who holds a special use permit for wireless
telecommunications facilities shall construct, operate, maintain,
repair, provide for removal of, modify or restore the permitted wireless
telecommunications facilities in strict compliance with all current
applicable technical, safety and safety-related codes adopted by the
Borough, county, state or United States, including but not limited
to the most recent editions of the National Electrical Safety Code
and the National Electrical Code, as well as accepted and responsible
workmanlike industry practices and recommended practices of the National
Association of Tower Erectors. The codes referred to are codes that
include, but are not limited to, construction, building, electrical,
fire, safety, health and land use codes. In the event of a conflict
between or among any of the preceding, the more stringent shall apply.
R.
A holder of a special use permit granted under this
chapter shall obtain, at its own expense, all permits and licenses
required by applicable law, rule, regulation or code, and must maintain
the same, in full force and effect, for as long as required by the
Borough or other governmental entity or agency having jurisdiction
over the applicant.
S.
An applicant shall submit to the Borough Clerk the
number of completed applications determined to be needed at the preapplication
meeting. Written notification of the application shall be provided
to the legislative body of all adjacent municipalities and to the
County Planning Department.
T.
The applicant shall examine the feasibility of designing
a proposed telecommunications tower to accommodate future demand for
at least five additional commercial applications, for example, future
collocations. The scope of this examination shall be determined by
the Council. The telecommunications tower shall be structurally designed
to accommodate at least five additional antenna arrays equal to those
of the applicant, and located as close to the applicant's antenna
as possible without causing interference. This requirement may be
waived, provided that the applicant, in writing, demonstrates that
the provision of future shared usage of the telecommunications tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for
the area.
(2)
The kind of wireless telecommunications facilities
site and structure proposed.
(3)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites.
(4)
Available space on existing and approved telecommunications
towers.
U.
The applicant shall submit to the Council a letter
of intent committing the owner of the proposed new tower, and his/her
successors in interest, to negotiate in good faith for shared use
of the proposed tower by other telecommunications providers in the
future. This letter shall be filed with the Council. Failure to abide
by the conditions outlined in the letter may be grounds for revocation
of the special use permit. The letter shall commit the new tower owner
and its successors in interest to:
(1)
Respond within 60 days to a request for information
from a potential shared-use applicant.
(2)
Negotiate in good faith concerning future requests
for shared use of the new tower by other telecommunications providers.
(3)
Allow shared use of the new tower if another telecommunications
provider agrees in writing to pay reasonable charges. The charges
may include, but are not limited to, a pro rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
V.
Unless waived by the Council, there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues which will help to expedite the review and permitting process.
A preapplication meeting may also include a site visit, if required.
Where the application is for the shared use of an existing telecommunications
tower(s) or other high structure, the applicant should seek to waive
any section or subsection of this chapter that may not be required.
At the preapplication meeting, the waiver requests, if appropriate,
will be decided by the Council. Costs of the Borough's consultants
to prepare for and attend the preapplication meeting will be borne
by the applicant.
W.
The holder of a special use permit shall notify the
Borough of Conway any intended modification of a wireless telecommunications
facility and shall apply to the Borough to modify, relocate or rebuild
a wireless telecommunications facility.
X.
In order to better inform the public, in the case
of a new telecommunications tower, the applicant shall, prior to the
public hearing on the application, hold a "balloon test" as follows:
Applicant shall arrange to fly, or raise upon a temporary mast, a
minimum of a three-foot diameter brightly colored balloon at the maximum
height of the proposed new tower. The dates (including a second date,
in case of poor visibility on the initial date), times and location
of this balloon test shall be advertised, by the applicant, at seven
and 14 days in advance of the first test date in a newspaper with
a general circulation in Borough and agreed to by the Council. The
applicant shall inform the Council, in writing, of the dates and times
of the test, at least 14 days in advance. The balloon shall be flown
for at least eight consecutive hours sometime between 7:00 a.m. and
4:00 p.m. of the dates chosen. The primary date shall be on a weekend,
but the second date, in case of poor visibility on the initial date,
may be on a weekday.
Y.
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine
if the telecommunications tower or existing structure intended to
support wireless facilities requires lighting under Federal Aviation
Regulation Part 77. This requirement shall be for any new tower or
for an existing structure or building where the application increases
the height of the structure or building. If this analysis determines
that the FAA must be contacted, then all filings with the FAA, all
responses from the FAA and any related correspondence shall be provided
in a timely manner.
A.
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities
in accordance with the following priorities, one being the highest
priority and four being the lowest priority:
B.
If the proposed property site is not the highest priority
listed above, then a detailed explanation must be provided as to why
a site of a higher priority was not selected. The person seeking such
an exception must satisfactorily demonstrate the reason or reasons
why such a permit should be granted for the proposed site and the
hardship that would be incurred by the applicant if the permit were
not granted for the proposed site.
C.
An applicant may not bypass sites of higher priority
by stating that the site presented is the only site leased or selected.
An application shall address collocation as an option, and if such
option is not proposed, the applicant must explain why collocation
is commercially or otherwise impracticable. Agreements between providers
limiting or prohibiting collocation shall not be a valid basis for
any claim of commercial impracticability or hardship.
D.
Notwithstanding the above, the Council may approve
any site located within an area in the above list of priorities, provided
that the Council finds that the proposed site is in the best interest
of the health, safety and welfare of the Borough and its inhabitants.
E.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority,
demonstrating the technological reason for the site selection. If
the site selected is not the highest priority, then a detailed written
explanation as to why sites of a higher priority were not selected
shall be included with the application.
F.
The applicant shall, in writing, identify and disclose
the number and locations of any additional sites that the applicant
has been, is or will be considering, reviewing or planning for wireless
telecommunications facilities in the Borough, and all municipalities
adjoining the Borough, for a two-year period following the date of
the application.
G.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
Council may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and
requirements.
(2)
Conflict with traffic needs or traffic laws, or definitive
plans for changes in traffic flow or traffic laws.
(3)
Conflict with the historic nature of a neighborhood
or historical district.
(4)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific
zoning or land use designation.
(5)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the probability
of such, to residents, the public, employees and agents of the Borough,
or employees of the service provider or other service providers.
(6)
Conflicts with the provisions of this chapter.
A.
Shared use of existing wireless telecommunications
facilities shall be preferred by the Borough, as opposed to the proposed
construction of a new telecommunications tower. Where such shared
use is unavailable, location of antennas on other preexisting structures
shall be considered and preferred. The applicant shall submit a comprehensive
report inventorying existing towers and other appropriate structures
within four miles of any proposed new tower site, unless the applicant
can show that some other distance is more reasonable, and outlining
opportunities for shared use of existing facilities and the use of
other preexisting structures as a preferred alternative to new construction.
B.
An applicant intending to share use of an existing
telecommunications tower or other structure shall be required to document
the intent of the existing owner to share use. In the event that an
application to share the use of an existing telecommunications tower
does not increase the height of the telecommunications tower, the
Council shall waive such requirements of the application required
by this chapter as may be for good cause shown.
C.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service within the
Borough, to the extent practicable, unless good cause is shown.
A.
The applicant shall submit documentation justifying
to the Council the total height of any telecommunications tower, facility
and/or antenna and the basis therefor. Such justification shall be
to provide service within the Borough, to the extent practicable,
unless good cause is shown.
B.
Telecommunications towers shall be no higher than
the minimum height necessary. Unless waived by the Council upon good
cause shown, the maximum height shall be 140 feet, based on six collocated
antenna arrays and ambient tree height of 80 feet.
C.
The maximum height of any telecommunications tower
and attached antennas constructed after the effective date of this
chapter shall not exceed that which shall permit operation without
artificial lighting of any kind, in accordance with municipal, county,
state and/or any federal statute, law, local law, Borough ordinance,
code, rule or regulation.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
Telecommunications towers shall be of a galvanized
finish, or painted with a rust-preventive paint of an appropriate
color to harmonize with the surroundings as approved by the Council,
and shall be maintained in accordance with the requirements of this
chapter.
C.
If lighting is required, applicant shall provide a
detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations, and
an artist's rendering or other visual representation showing the effect
of light emanating from the site on neighboring habitable structures
within 1,500 feet of all property lines of the parcel on which the
wireless telecommunications facilities are located.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access, specifically as follows:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and
constructed or shielded in such a manner that they cannot be climbed
or run into; and
B.
Transmitters and telecommunications control points
must be installed such that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall
contain a sign no larger than four square feet to provide adequate
notification to persons in the immediate area of the presence of an
antenna that has transmission capabilities. The sign shall contain
the name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency phone number(s). The sign shall be located so as to be
visible from the access point of the site. The sign shall not be lighted
unless the Council shall have allowed such lighting or unless such
lighting is required by applicable provisions of law. The sign shall
be approved by the Council before installation. No other signage,
including advertising, shall be permitted on any facilities, antennas,
antenna supporting structures or antenna towers, unless required by
law.
All proposed wireless telecommunications facilities
shall be set back from abutting parcels, recorded rights-of-way and
road and street lines by the greater of the following distances: distance
equal to the height of the wireless telecommunications facility or
the existing setback requirements of the underlying zoning district,
whichever is greater. Any accessory structure shall be located so
as to comply with the applicable minimum setback requirements for
the property on which it is situated.
A.
The Council may hire any consultant and/or expert
necessary to assist the Council in reviewing and evaluating the application
and any requests for recertification.
B.
An applicant shall deposit with the Borough funds
sufficient to reimburse the Borough for all reasonable costs of consultant
and expert evaluation and consultation to the Council in connection
with the review of any application. The initial deposit shall be $2,500.
These funds shall accompany the filing of an application, and the
Borough will maintain a separate escrow account for all such funds.
The Borough's consultants/experts shall bill or invoice the Borough
no less frequently than bimonthly for its services in reviewing the
application and performing its duties. In the event that the amount
held in escrow by the Borough is more than the amount of the actual
billing or invoicing at the conclusion of the review process, the
difference shall be promptly refunded to the applicant.
C.
The total amount of the funds set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Council or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the Borough, shall be paid by the applicant.
A.
No person shall be permitted to site, place, build,
construct or modify, or prepare any site for the placement or use
of, wireless telecommunications facilities as of the effective date
of this chapter without having first obtained a special use permit
for wireless telecommunications facilities. Notwithstanding anything
to the contrary in this section, no special use permit shall be required
for those exceptions noted in the definition of wireless telecommunications
facilities.
B.
New construction on existing wireless telecommunications
facilities shall comply with the requirements of this chapter.
C.
All wireless telecommunications facilities existing
on or before the effective date of this chapter shall be allowed to
continue as they presently exist; provided, however, that any modification
to existing wireless telecommunications facilities must comply with
this chapter.
A.
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing
shall be held by the Council, notice of which shall be published in
the official newspaper of the Borough no less than 10 calendar days
prior to the scheduled date of the public hearing. In order that the
Borough may notify nearby landowners, the applicant, at least three
weeks prior to the date of said public hearing, shall be required
to provide names and addresses of all landowners whose property is
located within 1,500 feet of any property line of the lot on which
the new wireless telecommunications facilities is proposed to be located.
B.
The Council shall schedule the public hearing referred to in Subsection A of this section once it finds the application is complete. The Council, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.
C.
The above provisions notwithstanding, if the application
is for a special use permit for collocating on an existing telecommunications
tower or high structure, where no increase in height of the tower
or structure is required, no public hearing will be required prior
to the approval of the application.
A.
The Council will undertake a review of an application
pursuant to this chapter in a timely fashion, and shall act within
a reasonable period of time given the relative complexity of the application
and the circumstances, with due regard for the public's interest and
need to be involved and the applicant's desire for a timely resolution.
B.
The Council may refer any application or part thereof
to any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering
the application, the Council may approve, approve with conditions
or deny a special use permit. Its decision shall be in writing and
shall be supported by substantial evidence contained in a written
record. The burden of proof for the grant of the permit shall always
be upon the applicant.
D.
If the Council approves the special use permit for
wireless telecommunications facilities, then the applicant shall be
notified of such approval in writing within 10 calendar days of the
Council's action, and the special use permit shall be issued within
30 days after such approval. Except for necessary building permits,
and subsequent certificates of compliance, once a special use permit
has been granted hereunder, no additional permits or approvals from
the Borough or Council, such as site plan or zoning approvals, shall
be required by the Borough or Council for the wireless telecommunications
facilities covered by the special use permit.
E.
If the Council denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such denial in writing within 10 calendar days of the Council's
action.
A.
At any time between 12 months and six months prior
to the five-year anniversary date after the effective date of the
special use permit and all subsequent fifth anniversaries of the effective
date of the original special use permit for wireless telecommunications
facilities, the holder of a special use permit for such wireless telecommunications
facilities shall submit a signed written request to the Council for
recertification. In the written request for recertification, the holder
of such special use permit shall note the following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facilities.
(2)
If applicable, the number or title of the special
use permit.
(3)
The date of the original granting of the special use
permit.
(4)
Whether the wireless telecommunications facilities
have been moved, relocated, rebuilt or otherwise modified since the
issuance of the special use permit and if so, in what manner.
(5)
If the wireless telecommunications facilities have
been moved, relocated, rebuilt or otherwise modified, then whether
the Council approved such action, and under what terms and conditions,
and whether those terms and conditions were complied with.
(6)
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter and any requirements for a special
use permit.
(7)
That the wireless telecommunications facilities are
in compliance with the special use permit and in compliance with all
applicable codes, laws, rules and regulations.
(8)
Recertification that the telecommunications tower
and attachments both are designed and constructed ("as built") and
continue to meet all local, county, state and federal structural requirements
for loads, including wind and ice loads. Such recertification shall
be by a qualified Pennsylvania state-licensed professional engineer
acceptable to the Borough, the cost of which shall be borne by the
applicant.
B.
If, after such review, the Council determines that
the permitted wireless telecommunications facilities are in compliance
with the special use permit and all applicable statutes, laws, local
laws, ordinances, codes, rules and regulations, then the Council shall
issue a recertification special use permit for the wireless telecommunications
facilities, which may include any new provisions or conditions that
are mutually agreed upon or required by applicable statutes, laws,
local laws, ordinances, codes, rules and regulations. If, after such
review, the Council determines that the permitted wireless telecommunications
facilities are not in compliance with the special use permit and all
applicable statutes, local laws, ordinances, codes, rules and regulations,
then the Council may refuse to issue a recertification special use
permit for the wireless telecommunications facilities, and in such
event, such wireless telecommunications facilities shall not be used
after the date that the applicant receives written notice of such
decision by the Council. Any such decision shall be in writing and
supported by substantial evidence contained in a written record.
C.
If the applicant has submitted all of the information requested by the Council and required by this chapter, and if the Council does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the Council to complete its review.
D.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the time frame noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Council that extenuating circumstances prevented a timely recertification request. If the Council agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
A.
Such special use permit shall be nonexclusive.
B.
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written consent of the Council,
and such consent shall not be unreasonably withheld or delayed.
C.
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled or terminated
for a violation of the conditions and provisions of the special use
permit for wireless telecommunications facilities, or for a material
violation of this chapter, after prior written notice to the applicant
and the holder of the special use permit.
A.
At the time that a person submits an application for
a special use permit for a new telecommunications tower, such person
shall pay a nonrefundable application fee of $2,000 to the Borough.
If the application is for a special use permit for collocating on
an existing telecommunications tower or high structure, where no increase
in height of the tower or structure is required, the nonrefundable
fee shall be $1,000.
B.
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its cost and expense, be jointly required to execute and file with
the Borough a bond, or other form of security acceptable to the Borough
as to type of security and the form and manner of execution, in an
amount of at least $75,000 and with such sureties as are deemed sufficient
by the Council to assure the faithful performance of the terms and
conditions of this chapter and conditions of any special use permit
issued pursuant to this chapter. The full amount of the bond or security
shall remain in full force and effect throughout the term of the special
use permit and/or until the removal of the wireless telecommunications
facilities, and any necessary site restoration, is completed. The
failure to pay any annual premium for the renewal of any such security
shall be a violation of the provisions of the special use permit and
shall entitle the Council to revoke the special use permit after prior
written notice to the applicant and holder of the permit and after
a hearing upon due prior notice to the applicant and holder of the
special use permit.
A.
In order to verify that the holder of a special use
permit for wireless telecommunications facilities and any and all
lessees, renters, and/or licensees of wireless telecommunications
facilities, place and construct such facilities, including towers
and antennas, in accordance with all applicable technical, safety,
fire, building and zoning codes, laws, ordinances and regulations
and other applicable requirements, the Borough may inspect all facets
of said permit holder's, renter's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including,
but not limited to, towers, antennas and buildings or other structures
constructed or located on the permitted site.
B.
The Borough shall pay for costs associated with such
an inspection, except for those circumstances occasioned by said holder's,
lessee's or licensee's refusal to provide necessary information or
necessary access to such facilities, including towers, antennas and
appurtenant or associated facilities, or refusal to otherwise cooperate
with the Borough with respect to an inspection, or if violations of
this chapter are found to exist, in which case the holder, lessee
or licensee shall reimburse the Borough for the cost of the inspection.
C.
Payment of such costs shall be made to the Borough
within 30 days from the date of the invoice or other demand for reimbursement.
In the event that the finding(s) of violation is/are appealed in accordance
with the procedures set forth in this chapter, said reimbursement
payment must still be paid to the Borough, and the reimbursement shall
be placed in an escrow account established by the Borough specifically
for this purpose, pending the final decision on appeal.
The holder of the special use permit shall,
annually, certify in writing to the Borough that NIER levels at the
site are within the threshold levels adopted by the FCC. The certifying
engineer must be licensed to practice engineering in the Commonwealth
of Pennsylvania; however, he or she need not be approved by the Borough.
A.
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special use permit in
amounts as set forth below:
B.
The commercial general liability insurance policy
shall specifically include the Borough and its officers, Councils,
employees, committee members, attorneys, agents and consultants as
additional named insureds.
C.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the Commonwealth and with a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement
obligating the insurance company to furnish the Borough with at least
30 days' prior written notice in advance of the cancellation of the
insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Borough at least 15 days before the expiration
of the insurance that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications
facilities is initiated, but in no case later than 15 days after the
grant of the special use permit, the holder of the special use permit
shall deliver to the Borough a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.
Any application for wireless telecommunications facilities
that is proposed for Borough property, pursuant to this chapter, shall
contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the law, to
at all times defend, indemnify, protect, save, hold harmless and exempt
the Borough, and its officers, Councils, employees, committee members,
attorneys, agents and consultants from any and all penalties, damages,
costs or charges arising out of any and all claims, suits, demands,
causes of action or award of damages, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the placement, construction, erection,
modification, location, products performance, use, operation, maintenance,
repair, installation, replacement, removal or restoration of said
wireless telecommunications facilities. With respect to the penalties,
damages or charges referenced herein, reasonable attorneys' fees,
consultants' fees and expert witness fees are included in those costs
that are recoverable by the Borough.
A.
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the Council may
impose and collect, and the holder of the special use permit for wireless
telecommunications facilities shall pay to the Borough, fines or penalties
as set forth below.
B.
A violation of this chapter is hereby declared to
be an offense and is punishable by a fine not exceeding $300 or imprisonment
for a period not to exceed 90 days, or both, for a conviction of a
first offense; for conviction of a second offense, both of which were
committed within a period of five years, punishable by a fine not
to exceed $600 or imprisonment for a period not to exceed 90 days,
or both; and upon conviction of a third or subsequent offense, all
of which were committed within a period of five years, punishable
by a fine of not more than $1,000 or imprisonment for a period not
to exceed 90 days, or both. However, for the purpose of conferring
jurisdiction upon courts and judicial officers generally, violations
of this article or of such ordinance or regulation shall be deemed
summary violations, and for such purpose only all provisions of law
relating to summary violations shall apply. Each week's continued
violation shall constitute a separate additional violation.
[Amended 7-11-2001 by Ord. No. 472]
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for wireless telecommunications facilities
may not use the payment of fines, liquidated damages or other penalties
to evade or avoid compliance with this chapter or any section of this
chapter. An attempt to do so shall subject the holder of the special
use permit to termination and revocation of the special use permit.
The Borough may also seek injunctive relief to prevent the continued
violation of this chapter, without limiting other remedies available
to the Borough.
A.
If wireless telecommunications facilities are repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way
that is inconsistent or not in compliance with the provisions of this
chapter or of the special use permit, then the Council shall notify
the holder of the special use permit in writing of such violation.
Such notice shall specify the nature of the violation or noncompliance
and that the violations must be corrected within seven days of the
date of the postmark of the notice, or of the date of personal service
of the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this chapter,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Council may,
at its sole discretion, order the violation remedied within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Council may revoke such special use permit for wireless telecommunications facilities and shall notify the holder of the special use permit within 48 hours of such action.
A.
Under the following circumstances, the Council may
determine that the health, safety and welfare interests of the Borough
warrant and require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications
facilities) for a period exceeding 90 days or a total of 180 days
in any three-hundred-sixty-five-day period, except for periods caused
by force majeure or Acts of God, in which case repair or removal shall
commence within 90 days.
(2)
Permitted wireless telecommunications facilities fall
into such a state of disrepair that they create a health or safety
hazard.
(3)
Wireless telecommunications facilities have been located,
constructed or modified without first obtaining, or in a manner not
authorized by, the required special use permit, or any other necessary
authorization.
B.
If the Council makes such a determination as noted in Subsection A of this section, then the Council shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed; the Council may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities, and all associated structures and facilities, from the
site and restore the site to as close to its original condition as
is possible, such restoration being limited only by physical or commercial
impracticability, within 90 days of receipt of written notice from
the Council. However, if the owner of the property upon which the
wireless telecommunications facilities are located wishes to retain
any access roadway to the wireless telecommunications facilities,
the owner may do so with the approval of the Council.
D.
If wireless telecommunications facilities are not
removed or substantial progress has not been made to remove the wireless
telecommunications facilities within 90 days after the permit holder
has received notice, then the Council may order officials or representatives
of the Borough to remove the wireless telecommunications facilities
at the sole expense of the owner or special use permit holder.
E.
If the Borough removes, or causes to be removed, wireless
telecommunications facilities, and the owner of the wireless telecommunications
facilities does not claim and remove it from the site to a lawful
location within 10 days, then the Borough may take steps to declare
the wireless telecommunications facilities abandoned and sell them
and their components.
F.
Notwithstanding anything in this section to the contrary,
the Council may approve a temporary use permit/agreement for the wireless
telecommunications facilities, for no more than 90 days, during which
time a suitable plan for removal, conversion or relocation of the
affected wireless telecommunications facilities shall be developed
by the holder of the special use permit, subject to the approval of
the Council, and an agreement to such plan shall be executed by the
holder of the special use permit and the Borough. If such a plan is
not developed, approved and executed within the ninety-day time period,
then the Borough may take possession of and dispose of the affected
wireless telecommunications facilities in the manner provided in this
section.
Any applicant desiring relief or exemption from
any aspect or requirement of this chapter may request such from the
Council at a preapplication meeting, provided that the relief or exemption
is contained in the original application for either a special use
permit or, in the case of an existing or previously granted special
use permit, a request for modification of its tower and/or facilities.
Such relief may be temporary or permanent, partial or complete, at
the sole discretion of the Council. However, the burden of proving
the need for the requested relief or exemption is solely on the applicant
to prove to the satisfaction of the Council. The applicant shall bear
all costs of the Council or the Borough in considering the request,
and the relief shall not be transferable to a new or different holder
of the permit or owner of the tower or facilities without the specific
written permission of the Council. Such permission shall not be unreasonably
withheld or delayed. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted, the relief or exemption will have no significant
effect on the health, safety and welfare of the Borough, its residents
and other service providers.
A.
The Council may at any time conduct a review and examination
of this entire chapter.
B.
If, after such a periodic review and examination of
this chapter, the Council determines that one or more provisions of
this chapter should be amended, repealed, revised, clarified or deleted,
then the Council may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that
where warranted, and in the best interests of the Borough, the Council
may repeal this entire chapter at any time.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief,
or is otherwise exempt, from appropriate state and/or federal agency
rules or regulations, then the holder of such a special use permit
shall adhere to, and comply with, all applicable rules, regulations,
standards and provisions of any state or federal agency, including,
but not limited to, the FAA and the FCC. Specifically included in
this requirement are any rules and regulations regarding height, lighting,
security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations,
standards and provisions of any state or federal agency, including,
but not limited to, the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting and security,
are changed and/or are modified during the duration of a special use
permit for wireless telecommunications facilities, then the holder
of such a special use permit shall conform the permitted wireless
telecommunications facilities to the applicable changed and/or modified
rule, regulation, standard or provision within a maximum of 24 months
of the effective date of the applicable changed and/or modified rule,
regulation, standard or provision, or sooner as may be required by
the issuing entity.
