HISTORY: Adopted by the Mayor and Board of Aldermen of the
Town of Dover 2-22-2022 by Ord. No. 1-2022. 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 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 USC § 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 C.F.R. § 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 the surface of any street, road, highway, lane, alley, boulevard
or drive, including the sidewalk, shoulder and area for utilities
owned by Dover within an easement to the public or other easement
owned by Dover.
"small wireless facility," as defined in the Code of Federal
Regulations at 47 C.F.R § 1.6002(1), as supplemented and/or
as amended.
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).
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 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 Dover Municipal Clerk and obtaining a siting
permit therefore, 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 Dover Municipal 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 Town of Dover, and by any other applicable federal, state
or municipal law have been issued by the appropriate issuing authority
therefore to the applicant and the applicant has supplied copies of
such other permits or approvals to the Dover Municipal 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 "B" to this chapter,[1] with Dover. 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 Dover Board of Aldermen. Dover
Municipal 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 Dover Board of Aldermen at the time that it grants consent
to use a right-of-way to a siting permit applicant.
[1]
Editor's Note: Said appendix is included as an attachment to this chapter.
B.
No siting permit authorizing placement of a small wireless facility
in a public right-of-way shall be issued to any applicant unless Dover
Board of Aldermen, 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 Dover. No siting of
a small wireless facility shall be permitted within 200 feet of another
small wireless facility unless it can be established 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, not disproven by the Town. Responsibility for
judging proof of said claims lies solely with the Town and/or 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 Appendix "A" to this chapter[1] 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.
[1]
Editor's Note: Said appendix is included as an attachment to this chapter.
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 pre-approved
types of smart poles that are identified in Appendix "A" to this chapter.
A replacement pole is a new structure. The restrictions on new structures
set forth herein shall not apply to new structures to be constructed
in the following zoning district: INSERT ZONE IF APPLICABLE. Appendix
"A" to this chapter from time-to-time may be revised, supplemented
or otherwise amended or replaced. All such revisions, supplements,
amendments or replacements shall be approved by resolution of Town
of Dover Board of Aldermen. The Dover Municipal Clerk shall provide
a copy of Appendix "A" to all siting permit applicants.
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 Town wireless siting plan, which can be found on
file with the Office of the Town Clerk. All small wireless facilities
must be placed within a twenty-five-foot radius of those specific
locations set forth on the Town'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
200 feet of another.
A.
Application filing. An application for a siting permit to place one
or more small wireless facility within a right-of-way shall be made
on forms which shall be available from the Office of the Dover Municipal
Clerk. The application, along with the required application fee and
the required escrow fee, shall be filed with the Dover Municipal Clerk.
Immediately upon receipt of an application, the Dover Municipal Clerk
shall provide copies of the application and all supporting documents
that were submitted by the applicant with the application, to the
Dover Engineer, the Construction Official and the Dover Municipal
Attorney.
B.
Application form. The small wireless facility 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 e-mail 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, 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 Dover, or a designee of Dover, 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.
Dover 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 a siting permit on nondiscriminatory terms
and conditions subject to the following requirements:
(1)
Within 10 days of receiving an application, the Dover Municipal 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.
Dover shall make its final decision to approve or deny the application
within the following timeframes:
(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.
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The timeframes described above by which an application shall
be either approved or denied may be extended by mutual consent of
the applicant and Dover. Such consent shall be set forth on a form
for such purposes which shall be available from the Office of Dover
Municipal Clerk. Such consent on behalf of Dover shall be exercised
by the Mayor in his/her reasonable discretion.
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C.
The Dover Municipal Clerk shall notify the applicant in writing of
the final decision, and if the application is denied shall specify
the basis for denial; and cite such specific provisions, as may be
recommended by the Dover Municipal Attorney, 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 Dover within 30 days of the denial without paying an
additional application fee, provided Dover Municipal 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 Dover fails to act upon an application within the timeframes prescribed
by this section, the applicant may provide written notice to Dover
that the application review and decision period has lapsed. Upon receipt
of such notice, The Dover Board of Aldermen, 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 Dover fails to act upon an application within the timeframes
prescribed by this section.
F.
A siting permit from Dover 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 Dover 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 twelve (24) 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 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 Dover and/or another
provider has placed equipment or facilities, any routine maintenance
or replacement that is done shall not occur until written authorization
from Dover and/or the other provider, as the case may be, to proceed
is provided to Dover, which authorization to proceed shall not unreasonably
be withheld by Dover 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.
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.
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 Town of Dover: $5,000.
(2)
For applications whose proposed small wireless facility deployment(s)
will require a street opening permit of the Code of the Town of Dover:
$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 Dover'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 Dover for all fees, costs and
expenses of third-party professionals and consultants incurred and
paid by Dover 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 Dover 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 Dover, such as Dover Municipal Attorney, Dover
Engineer and Dover Planner or other experts as required.
C.
The escrow account deposits shall be placed in a separate account
by Dover's Chief Financial Officer at the request of the Dover
Municipal 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;
(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 Dover Board of Aldermen;
(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 Morris 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)
Dover 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 Dover.
An applicant whose siting permit includes the installation of
any new smart pole structure of any of the types that are included
in Appendix "A" to this chapter[1] shall provide Dover 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 Dover decide to utilize any such technological features then
Dover, 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 Dover with such access. Such costs shall be limited to the
costs of providing electricity to the components used by Dover and
the costs of any repairs required to be made to the components used
by Dover, 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.
[1]
Editor's Note: Said appendix is included as an attachment to this chapter.
