[HISTORY: Adopted by the Mayor and Council of the Borough of Kinnelon 3-16-1995 by Ord. No. 3-95 (Ch. 85 of the 1972 Code). Amendments noted where applicable.]
[1]
Editor's Note: The Borough reorganized §§ 189-1 through 189-9 as Art. I of this article 6-16-2022 by Ord. No. 06-22.
Prior to the erection of any new utility pole, post, tower, wire, conduit, pedestal, cabinet or other facility ("facility") by any electric light, heat, power, telephone or other utility company, however denominated, that provides a similar public service under governmental regulation ("utility") within the Borough of Kinnelon ("Borough"), said utility shall be required to submit to the Superintendent of the Department of Public Works of the Borough ("Superintendent") and the Kinnelon Police Department a map or plan showing the location and the size of the facility.
All facilities hereafter to be sited by any utility shall be placed no closer than 18 inches to the curb face or shoulder edge of the public street or way to which said facility is adjacent, pursuant to the standards promulgated by the American Association of State Highway and Transportation Officials. Whenever practicable, however, the utility shall place the facility a greater distance from the street or way to which said facility is adjacent than the minimum standard of 18 inches.
The map or plan submitted by the utility shall include or be accompanied by a brief written statement prepared by or on behalf of the utility, which explains the basis on which the utility has determined that the site in question is suitable for the facility with regard to applicable safety concerns. Said statement shall include, without limitation, the following information:
A. 
An affirmation that the placement of the proposed facility conforms to the standards promulgated by the American Association of State Highway and Transportation Officials.
B. 
An affirmation that the placement of the proposed facility has taken into account any safety concerns presented as a result of the configuration, nature and characteristics of the roadway (i.e., bends or curves, etc.) and the topographic features of the site. Said affirmation shall set forth the factors considered.
C. 
An affirmation that any record of previous accidents at the location in question has been considered and that the site is nonetheless appropriate for facility placement. Said affirmation should include language indicating the manner in which accident information was obtained.
D. 
An affirmation that there exists no suitable, less dangerous alternate site for the facility in question.
In the event that the information provided by the utility to the Borough is insufficient to enable the Borough to adequately assess the propriety of the placement of the facility in light of the applicable safety concerns, the utility shall submit such other and further information as is requested by or on behalf of the Borough, and the time period within which the Borough is to act on the application shall commence upon the Borough's receipt of said additional information.
No utility pole, post, tower, wire, conduit, pedestal, cabinet or other facility shall be erected, constructed, replaced or reconstructed by any utility without the express approval by the Borough of the placement and design of the facility after consideration of the applicable safety concerns, which consideration shall include but shall not be limited to those factors set forth in §§ 189-2 and 85-3A through D above.
In the case of a proposed new facility, after submission by the utility of the documentation required by the Superintendent or Kinnelon Police Department, the Borough shall inform the utility in writing of the approval or denial of siting authorization within 10 business days in the case of a new facility.
With regard to a proposed replacement facility, the utility proposes to site the point or place previously occupied by such facilities, the Superintendent of the Department of Public Works shall be notified of the proposed replacement by telephone 24 hours prior to such action. While the Borough will not prohibit the replacement of the facility in question, the utility is hereby placed on notice that all replacement facilities are subject to the conditions set forth in § 189-3 of this article. Thus, the utility shall comply with the guidelines contained therein and consider all necessary factors and shall demonstrate such compliance and adequate consideration by submitting the documentation required by §§ 189-1 and 85-3A through D after the replacement of the facility in question, which records will be retained by the Borough to affirm the suitability of the placement.
Siting authorization shall not be unreasonably denied by the Borough. In the event that siting authorization is denied by the Borough, the written denial shall include the reason(s) therefor. After receipt of any such written denial, the utility may select an alternative site and repeat the process of seeking authorization therefor as is set forth in this article.
A copy of this article shall be provided to all utilities having facilities located in the Borough. The failure of the Borough to provide such notice to any utility shall not exempt the utility from complying with the requirements of this article.
[Added 6-16-2022 by Ord. No. 06-22]
As used in this article, the following terms shall have the meanings indicated:
ANTICIPATED MUNICIPAL EXPENSES
The cost of processing an application for a rights-of-way permit, including, but not limited to, all professional fees such as engineering and attorney costs incurred by the Borough.
BOROUGH COUNCIL
The Borough Council of the Borough of Kinnelon.
CABINET
A small box-like or rectangular structure used to facilitate utility or wireless service from within the municipal rights-of-way.
ELECTRIC DISTRIBUTION SYSTEM
The part of the electric system, after the transmission system, that is dedicated to delivering electric energy to an end user.
EXISTING POLE
A pole that is in lawful existence within the municipal rights-of-way.
GROUND-LEVEL CABINETS
A cabinet that is not attached to an existing pole and is touching or directly supported by the ground.
MUNICIPAL RIGHT-OF-WAY or MUNICIPAL RIGHTS-OF-WAY
The surface of, and the space above or below, any public street, road, place, public way or place, sidewalk, alley, boulevard, parkway, or drive held by the Borough as an easement or in fee simple ownership. This term also includes rights-of-way held by the County of Morris where the Borough's approval is required for the use of same pursuant to N.J.S.A. 27:16-6. This term shall not include private roadways.
POLE
A long, slender, rounded piece of wood, concrete or metal.
POLE-MOUNTED ANTENNA
A device that is attached to a pole and used to transmit radio or microwave signals and shall include, but not be limited to, small cell equipment and transmission media such as femtocells, picocells, microcells, and outside distributed antenna systems.
POLE-MOUNTED CABINET
A cabinet that is proposed to be placed on an existing or proposed pole.
PROPOSED POLE
A pole that is proposed to be placed in the municipal rights-of-way.
RIGHTS-OF-WAY AGREEMENT
An agreement that sets forth the terms and conditions for use of the municipal rights-of-way and includes, but is not limited to, municipal franchise agreements.
RIGHTS-OF-WAY PERMIT
An approval from the Borough setting forth the applicant's compliance with the requirements of this article.
SURROUNDING STREETSCAPE
Existing poles within the same rights-of-way which are located within 500 linear feet of the proposed pole.
UTILITIES REGULATED BY THE BOARD OF PUBLIC UTILITIES
Companies subject to regulation by the New Jersey Board of Public Utilities under Title 48 of the Revised Statutes.
UTILITY SERVICE
Electric, telephone, or cable service.
ZONE, NONRESIDENTIAL
The Commercial Zone, Restricted Commercial Zone, Limited Industrial Zone and Restricted Recreation Zone as designated in Chapter 207, Zoning, of the Code of the Borough of Kinnelon.
ZONE, RESIDENTIAL
Any zones permitting single-family, two-family, or multifamily residences, assisted-living residences, nursing homes, and/or residential health care facilities.
A. 
No person shall operate or place any type of pole-mounted antenna, cabinet or pole within the municipal rights-of-way without first entering into a rights-of-way agreement pursuant to the provisions of this section.
B. 
The terms of said rights-of-way agreement shall include:
(1) 
A term not to exceed 15 years;
(2) 
Reasonable insurance requirements;
(3) 
Fine for unauthorized installations;
(4) 
A reference to the siting standards as set forth in this article; and
(5) 
Any other items which may reasonably be required.
Notwithstanding any franchise or rights-of-way agreement to the contrary, all antennas, poles and cabinets proposed to be placed within the municipal rights-of-way by a utility regulated by the Board of Public Utilities, or any other entity with legal access to the municipal rights-of-way, shall be subject to the standards and procedures set forth in this article and shall require rights-of-way permits for the siting of poles, antennas and cabinets in the municipal rights-of-way.
A. 
No pole, antenna or cabinet shall be installed within the municipal rights-of-way without the issuance of a rights-of-way permit.
B. 
Pole siting standards.
(1) 
Height. No pole shall be taller than 35 feet or 110% of the average height of poles in the surrounding streetscape, whichever is higher.
(2) 
Location, safety and aesthetics. No pole shall be erected in the rights-of-way unless it:
(a) 
Is used to bring utility service across the rights-of-way to an existing or proposed development from an existing pole; or
(b) 
Is replacing an existing pole; or
(c) 
Is approved pursuant to a land development application by either the Borough's Zoning Board of Adjustment or Planning Board pursuant to a land use application; or
(d) 
Is located on the opposite side of the street from the electric distribution system; and
(e) 
For sites in residential zones, is 200 linear feet from any other existing pole or proposed pole along the same side of the street or, for sites in nonresidential zones, is 100 linear feet from any other existing pole or proposed pole along the same side of the street; and
(f) 
Is not located in an area with underground utilities; and
(g) 
Does not inhibit any existing sight triangles or sight distance; and
(h) 
Allows adequate room for the public to pass and repass across the municipal rights-of-way; and
(i) 
Is finished and/or painted, constructed and otherwise camouflaged, in conformance with best available stealth technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties, and to permit the co-location of additional pole-mounted antennas thereon.
C. 
Ground-level cabinet site standards.
(1) 
Ground-level cabinets are prohibited in residential zones.
(2) 
Ground-level cabinets are permitted in nonresidential zones, provided that each ground-level cabinet:
(a) 
Is less than 28 cubic feet in volume; and
(b) 
Is finished and/or painted to blend in compatibly with its background to minimize its visual impact on surrounding properties; and
(c) 
Does not inhibit any existing sight triangles or sight distance; and
(d) 
Allows adequate room for the public to pass and repass across the municipal rights-of-way.
D. 
Pole-mounted antenna and pole-mounted cabinet siting standards.
(1) 
Pole-mounted antennas are permitted on existing poles in all zones, provided that each pole-mounted antenna:
(a) 
Does not exceed 3 cubic feet in volume; and
(b) 
Is finished and/or painted and otherwise camouflaged, in conformance with best available stealth technology methods, to blend in compatibly with its background to minimize its visual impact on surrounding properties; and
(c) 
Does not inhibit sight triangles or sight distance; and
(d) 
Allows adequate room for the public to pass and repass across the municipal rights-of-way.
(2) 
Pole-mounted cabinets are permitted on existing poles in all zones, provided that each pole-mounted cabinet:
(a) 
Does not exceed 16 cubic feet; and
(b) 
Is finished and/or painted and otherwise camouflaged, in conformance with best available stealth technology methods, to blend in compatibly with its background to minimize its visual impact on surrounding properties; and
(c) 
Does not inhibit sight triangles or sight distance; and
(d) 
Allows adequate room for the public to pass and repass across the municipal rights-of-way.
(3) 
The Borough may also require that an applicant provide a certification from a licensed engineer attesting to the structural integrity of any pole-mounted antenna or pole-mounted cabinet and the structure on which it is proposed to be mounted.
A. 
Preapplication meeting. While not required by the Borough, prior to making a formal application with the Borough for use of the municipal rights-of-way, all applicants are advised to meet with the Borough Engineer to review the scope of applicant's proposal.
B. 
The Borough Council shall, by resolution, approve or disapprove every rights-of-way permit application based on the recommendations provided to it pursuant to Subsection E below.
C. 
All applications made under this article which trigger Federal Communications Commission shot clock rules pursuant to the Federal Communications Commission Order "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment; Accelerating Wireline Broadband Deployment by the Removal of Barriers to Infrastructure Investment," WT Docket No. 17-79; WC Docket No. 17-84 shall be processed on an expedited basis.
D. 
Every application for a proposed pole must include a stamped survey prepared by a New Jersey licensed surveyor demonstrating that any such proposed pole is located within the municipal rights-of-way. An application which does not include such a survey shall immediately be deemed incomplete.
E. 
The Borough Engineer shall review applications made pursuant to this article and advise the Borough Council of his or her recommendation to approve or disapprove same. If he or she recommends that an application be disapproved, the factual basis for that recommendation must be transmitted to the Borough Council in writing.
F. 
If the Borough Council denies any application made under this article, it shall do so in writing and set forth the factual basis therefor.
The Borough Council may, by resolution, waive any siting standard set forth in § 189-13 where the applicant demonstrates that strict enforcement of said standard:
A. 
Will prohibit or have the effect of prohibiting any interstate or intrastate telecommunications service pursuant to 47 U.S.C. § 253(a); or
B. 
Will prohibit or have the effect of prohibiting personal wireless service pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II); or
C. 
Will violate any requirement set forth by the Federal Communications Commission Order "Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment; Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment," WT Docket No. 17-79; WC Docket 17-84.
A. 
Every rights-of-way permit application must include a rights-of-way permit fee in the following amounts:
(1) 
One to five co-location sites on existing poles: $500.
(2) 
Each additional co-location site on an existing pole: $100.
B. 
Deposit towards anticipated municipal expenses.
(1) 
In addition to the rights-of-way permit fee, the Borough Engineer may, in his or her own discretion, require the posting of a $2,000 deposit towards anticipated municipal expenses related to an application made pursuant to this article.
(2) 
Applicant's deposit towards anticipated municipal expenses shall be placed in an escrow account. If said deposit contains insufficient funds to enable the Borough to perform its review, the Chief Financial Officer of the Borough or designee shall provide the applicant a notice of insufficient balance. In order for review to continue, the applicant shall, within 10 days, post a deposit to the account in an amount to be mutually agreed upon.
(3) 
The Chief Financial Officer or designee shall, upon request by the applicant, and after a final decision has been made by the Borough Council regarding his or her pending rights-of-way permit application, and subject to review by the Borough Engineer, refund any unused balance from the applicant's deposit towards anticipated municipal expenses.
Any applicant for a rights-of-way permit shall, as a condition to the issuance of same, permit the co-location of pole-mounted antennas onto any new pole to the maximum amount that co-location is technically feasible which, in any event, shall not be less than two pole-mounted antennas.
A. 
Any approval received pursuant to this article does not relieve the applicant from receiving consent from the owner of the land above which an applicant's facility may be located as may be required under New Jersey law, or the owner of any existing pole on which the facility may be mounted.
B. 
Applicants must, in addition to receiving a rights-of-way permit, also receive all necessary road opening permits, construction permits and any other requirement set forth in the Code of the Borough of Kinnelon or state statutes.
C. 
The Borough's consent for use of county roads, as required pursuant to N.J.S.A. 27:16-6, shall take the form of a rights-of-way permit subject to the standards and application process set forth in this article. No such applicant shall be required to enter into a rights-of-way agreement with the Borough.
D. 
Applicants must comply with all applicable state, local and federal regulations.
E. 
Any agreement or rights-of-way permit issued pursuant to this article shall not supersede or in any way take the place of any local approvals or franchises which otherwise in the future may be required by applicants under the New Jersey Cable Television Act, N.J.S.A. 48:5A-1 et seq.