[HISTORY: Adopted by the Township Council of the Township
of Manchester 2-28-2022 by Ord. No. 22-05. 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, are incorporated herein and are made apart
hereof.
B.
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 a part hereof.
C.
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.
D.
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
SMALL WIRELESS FACILITIES INFRASTRUCTURE
SMALL WIRELESS FACILITY
SMART POLE
UTILITY POLE
WIRELESS COMMUNICATIONS INFRASTRUCTURE
In addition to the foregoing, the following words, terms and phrases
shall have the meanings indicated unless an alternate meaning clearly
is discernible 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 the surface of any street, road, highway, lane, alley, boulevard
or drive, including the sidewalk, shoulder and area for utilities
owned by the Township of Manchester.
A smart pole meeting the above definition or other co-locatable
infrastructure designed or deployed for the purpose of supporting
a small wireless facility, the types of which may be approved by geographical
zones as defined by Manchester Township.
"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 of no more than six cubic feet in volume or, in the case
of an antenna that has exposed elements, the antenna and all of its
exposed elements could fit within an imaginary enclosure of no more
than six cubic feet; and ii) all other wireless equipment attached
directly to a utility pole associated with the facility is cumulatively
no more than 25 cubic feet in volume. The following types of associated
ancillary equipment are not included in the calculation of equipment
volume: electric meter, concealment elements, telecommunications demarcation
box, ground-based enclosures, grounding equipment, power transfer
switch, cutoff switch, and vertical cable runs for the connection
of power and other services.
A decorative utility pole that conceals three or more small
wireless facility installation(s) and may include other features such
as streetlighting, 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,
external cabling, or other attachments. The pole should be made of
an inherently rust-resistant material (i.e., aluminum alloys or stainless
steel).
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.
Infrastructure designed specifically for the purpose of supporting
wireless facility equipment deployments, including large-scale (macro)
co-locatable infrastructure as well as small wireless facilities infrastructure.
E.
In the event that a term, word or phrase is not defined in any of
the aforementioned statutes and is not otherwise defined herein, then
that term, word or phrase shall have its common, ordinary meaning.
A.
No person shall place a small wireless facility in any right-of-way
without first filing a small wireless facility siting permit application,
in the form specified herein and in accordance with the procedures
specified herein, with the Manchester Clerk and obtaining a siting
permit therefor, 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 in a public right-of-way shall
not be issued by the Manchester Clerk to any applicant 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, Chapter 382, Article V, Street Openings, of the
Code of the Township of Manchester, 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 Manchester 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 to this chapter,
with the Township of Manchester. The approved form of the 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 Manchester Township
Council. The Manchester Township 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 the right-of-way
use agreement may be approved by Manchester Township Council at the
time that it grants consent to use a right-of-way to a siting permit
applicant.
B.
No siting permit authorizing placement of a small wireless facility
in a public right-of-way shall be issued to any applicant unless Manchester
Township 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 Township of Manchester.
No siting of a small wireless facility shall be permitted within 500
feet of another small wireless facility unless it can be established
by clear and convincing evidence that compliance with these regulations
would effectively prohibit the applicant from providing service and
that co-location on an existing or previously approved small wireless
facility is not feasible. Any claims of applicants of technical incompatibility
or inability to co-locate need to be demonstrated scientifically by
the applicant how technical incompatibility exists, not disproven
by the municipality. Responsibility for judging proof of said claims
lies solely with the municipality and/or its chosen representative(s).
A.
No application for a small wireless facility 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 § 342-1, 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 applicants of technical incompatibility or inability to comply with this requirement need to be demonstrated scientifically by the applicant, not disproven by the municipality. Responsibility for judging proof of said claims lies solely with the municipality and/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 types of smart poles that are identified in § 342-1, Definitions, to this chapter. A replacement pole is a new structure.
C.
No application for a small wireless facility 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 Township's Wireless Siting Plan, which can be
found on file with the Office of the Township Clerk. All small wireless
facilities must be placed within a twenty-five-foot radius of those
specific locations set forth on the Township'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 poles shall be
located within 500 feet of another. Any claims of carriers of technical
incompatibility or inability to comply with this requirement need
to be proven by the carrier, not disproven by the municipality. Responsibility
for judging proof of said claims lies solely with the municipality
and/or its chosen representative(s).
A.
Application filing. An application for a siting permit to place one
or more small wireless facilities within a right-of-way shall be made
on forms which shall be available from the Office of the Manchester
Township Clerk. The application, along with the required application
fee and the required escrow fee, shall be filed with the Manchester
Township Clerk. Immediately upon receipt of an application, the Manchester
Township Clerk shall provide copies of the application and all supporting
documents that were submitted by the applicant with the application
to the Manchester Township Engineer, Zoning Official, Construction
Official and the Manchester Township Solicitor.
B.
Application form. The small wireless facility siting permit application
shall be made by a provider of personal wireless services, its duly
authorized representative, as noted in a notarized statement from
the provider of personal wireless services, on whose behalf the representative
is acting, or an entity in the business of deploying wireless communications
facilities or infrastructure, 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. 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, subsurface 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 Township of Manchester, or a designee of the Township
of Manchester, on the area of consultation for the applicant even
if the applicant cannot be available;
(5)
Verification via sworn statement from an appropriate professional
that the small wireless facility shall comply with all applicable
federal, state and local laws, administrative regulations and codes.
With respect to radio frequency emissions, the applicant must provide
a sworn statement from a qualified radio frequency engineer that the
application will comply with all applicable federal, state, and local
laws regarding radio frequency emissions;
(6)
The applicant shall certify that they shall make available 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. Any denial of
any individual small wireless facilities within a batched application
will not impact the consideration of other sites within the same application.
A.
The Township of Manchester shall review the application for a small
wireless facility siting permit in light of its conformity with the
provisions of this chapter and shall approve or deny a siting permit
on nondiscriminatory terms and conditions subject to the following
requirements: Within 10 days of receiving an application, the Manchester
Township Clerk shall determine and notify the applicant:
B.
The Township of Manchester 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.
(4)
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 Manchester Township. Such consent shall be set forth
on a form for such purposes which shall be available from the Office
of the Manchester Township Clerk. Such consent on behalf of the Township
of Manchester shall be exercised by the Mayor in his/her reasonable
discretion.
C.
The Manchester Township 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 Township of Manchester 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 Township of Manchester within 30 days of the denial
without paying an additional application fee, provided the Township
of Manchester 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.
A siting permit from the Township of Manchester 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 Township
of Manchester for the delivery of telecommunications services or for
any other purpose.
F.
Nothing in this section affects an applicant's obligation to
apply for other permits that may be required under this code, such
as street opening permits or construction permits, for which the applicant
has not yet applied. No small wireless facility siting permit shall
be approved 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.
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.
B.
The replacement of a small wireless facility with another small wireless
facility that is the same 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 municipality 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 municipality and/or the other provider, as the case may be,
to proceed is provided to the municipality, which authorization to
proceed shall not unreasonably be withheld by the municipality and/or
the other provider.
D.
Provided further that if the replacement of a small wireless facility
with another small wireless facility includes replacement of the structure
to which the small wireless facility 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 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 with an additional $100 for
each small wireless facility 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 Township
unless and until an applicant applies for pole attachment to a Township-owned
pole.
A.
In addition to the application fee, all applications for approval
and issuance of a small wireless facility siting permit shall be accompanied
by an escrow fee as follows:
(1)
For applications whose proposed small wireless facility deployment(s)
will not require a street opening permit pursuant to Chapter 382,
Article V, of the Code of the Township of Manchester: $5,000.
(2)
For applications whose proposed small wireless facility deployment(s)
will require a street opening permit of the Code of the Township of
Manchester: $7,500.
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 Township of Manchester'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 Township of Manchester
for all fees, costs and expenses of third-party professionals and
consultants incurred and paid by the municipality for the review process
of a small wireless facility 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 Township of Manchester 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 Township of Manchester, such as the Township
of Manchester Attorney, Township of Manchester Engineer and Township
of Manchester Planner or other experts as required.
C.
The escrow account deposits shall be placed in a separate account
by the Manchester Township's Chief Financial Officer at the request
of the Manchester Township 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 the applicant and the same third
party who may otherwise be entitled to said fees.
(2)
Upon either final denial of a small wireless facility siting permit
application or upon issuance of a small wireless facility 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 Manchester Township
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 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 the county; and
(b)
Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar
basis with no markup being permitted;
(7)
The Township of Manchester 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 Township of Manchester.
An applicant whose siting permit includes the installation of any new smart pole structure of any of the types that are defined in § 342-1, Definitions, to this chapter shall provide the Township of Manchester with access to space within the smart pole structure for the purpose of deploying Manchester Township's own equipment, including, but not limited to, public access Wi-Fi, 911 call service or security cameras. Notwithstanding the foregoing, the municipal use shall not interfere with small wireless facilities of any other users of that smart pole. Any municipal use pursuant to this section shall include a reimbursement to the applicant, on an annual basis, of the costs, on a dollar-for-dollar basis, of providing the Township of Manchester with such access. Such costs shall be limited to the costs of providing electricity to the components used by the Township of Manchester and the costs of any repairs required to be made to the components used by the Township of Manchester, 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.
All ordinances or parts of ordinances inconsistent with this
chapter, to the extent of such inconsistencies only, be and the same
hereby are repealed.
Notwithstanding any provision to the contrary, nothing in this
code should be interpreted to have the effect of prohibiting or effectively
prohibiting the deployment of broadband or other communications services.
This chapter shall take effect immediately upon final passage
and publication as provided by law.
