[HISTORY: Adopted by the Board of Commissioners of the Township of Haverford as indicated in article histories.]
[Adopted 10-13-2009 by Ord. No. 2583]
Editor's Note: This ordinance also repealed former Ch. 167, Telecommunications, adopted 10-12-1999 by Ord. No. 2319.
The intent of this article is to:
Provide clear standards and review requirements addressing the installation and maintenance of wireless communications facilities in rights-of-way.
Assist the Township in managing and maintaining its rights-of-way in accordance with applicable law for the long-term benefit of the public.
Recover the costs of maintaining, managing, and regulating the installation and maintenance of wireless communications facilities in rights-of-way.
No wireless communications facility shall be installed, constructed, maintained, or operated in any right-of-way except in compliance with this article, and all other applicable provisions of the Township Code, including but not limited to Chapter 157, Streets and Sidewalks, Article III, Excavations, Openings, and Occupancy. The placement of wireless communications facilities in a public ROW shall be governed by this article and shall not be subject to the requirements of Chapter 182, Zoning.
As used in this article, the following words and terms shall have the following meanings:
- ANTENNA ARRAY
- One or more dipoles, panels (discs) or other devices used for the transmission or reception of radio frequency signals, which may include omnidirectional dipole, directional antenna (panel) and parabolic antenna disc. The antenna array shall not include the support structure.
- The person applying for a ROW use permit.
- The form prescribed by the Township, which the applicant must complete in order to obtain a ROW use permit under this article.
- BASE STATION (MICROCELL TYPE)
- Wireless communications facilities consisting of an array that is either no more than four feet in height with an area of not more than 580 square inches or, if a tubular antenna, no more than four inches in diameter and no more than six feet in height.
- A condition that, in the judgment of the Township Manager, constitutes an imminent risk to health, welfare, or safety of the public.
- EQUIPMENT FACILITY
- Any structure or enclosure used to contain ancillary equipment as a component of a wireless communications facility, including a cabinet, shelter, a buildout of an existing structure or a pedestal.
- The recipient of a ROW use permit and its contractors and/or subcontractors.
- Any individual, corporation, partnership, association, governmental entity or any other legal entity, but not the Township of Haverford.
- PUBLIC UTILITY
- A public utility corporation certificated by the Pennsylvania Public Utility Commission and acting within its certificated authority.
- RIGHT-OF-WAY or ROW
- The space in, upon, above, along, across, and over the public streets, roads, lanes, courts, ways, alleys, boulevards, and places, including all public utility easements and public service easements that are under the jurisdiction of the Township. The phrase "in the right(s)-of-way" means "in, on, over, along, above and/or under the right(s)-of-way."
- RIGHT-OF-WAY USE PERMIT or ROW USE PERMIT
- A written authorization granted by the Township to an applicant to enter upon and occupy a right-of-way for the purpose of installing, constructing, maintaining, or operating wireless communications facilities.
- SUPPORT STRUCTURE
- A structure designed and constructed to support an antenna array or base station.
- WIRELESS COMMUNICATIONS FACILITY
- Any unstaffed facility for the transmission and/or reception of wireless communications services, usually consisting of an antenna array or base station, connection cables, an equipment facility and a support structure or attachment structure to achieve the necessary elevation.
- WIRELESS COMMUNICATIONS SERVICE
- Any personal wireless service as defined by the federal Telecommunications Act of 1996, which includes FCC-licensed commercial wireless telecommunications services, including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging and similar services that currently exist or that may in the future be developed.
The Township Manager, or his/her designee, shall be the principal Township official responsible for the administration and implementation of this article.
The Township Manager, or his/her designee, shall coordinate the preparation of all policies and forms as necessary for the implementation of this article with the approval of the Board of Commissioners.
Except as otherwise provided in this article, no person shall enter upon or occupy any right-of-way for the purpose of installing, constructing, maintaining, or operating wireless communications facilities without first having obtained a ROW use permit for each such facility.
Nature of grant. A ROW use permit shall not convey title, equitable or legal, in the right-of-way. A ROW use permit grants a right to occupy a ROW in the Township.
Term. ROW use permits shall have a one-year term, automatically renewable, subject to then current code provisions and the payment of applicable fees to the Township in accordance with this article.
Every person who desires to construct, install, maintain, or operate wireless communications facilities in the ROW must enter into a right-of-way use agreement with the Township as a prerequisite to the issuance of any ROW use permits. The form and content of the right-of-way use agreement shall be established by the Board of Commissioners.
Except as otherwise provided herein, any person owning, operating or maintaining any wireless communications facility in any right-of-way as of the effective date of this article shall also obtain a ROW use permit in accordance with § 167-9, Transitional provisions.
Nothing in this article shall be construed as a waiver of any other ordinances or regulations of the Township or the Township's right to require permittees to secure and remit payment for any and all other required permits or authorizations.
Wireless communications facilities allowed in rights-of-way shall be limited to base stations and any equipment facilities necessary to the operation of the base stations.
Support structure. The antenna array must be mounted on a monopole support structure, such as a utility pole, in compliance with construction standards approved by the Township Engineer. The support structure must be located in proximity to other similar support structures within the right-of-way and cannot exceed them in height by more than five feet.
Equipment facilities must be installed so that the roof or lid is either below or is flush with local ground-level grade. All such equipment facilities shall be shown in the application. The Board of Commissioners may grant a waiver to this requirement, on a case-by-case basis, upon the applicant's showing of need, provided that the facility does not constitute an obstruction in the ROW which would endanger public safety.
An application for a ROW use permit shall be submitted to the Township Manager on a form, established by the Township, which form may be revised from time to time.
The application form shall request information regarding the proposed or actual physical use and occupation of the right-of-way by the applicant, including specific information regarding the wireless communications facilities the applicant proposes to place or currently maintains in the right-of-way.
A single application may cover multiple wireless communications facilities.
Support structure attachment agreement. If the antenna array is to be erected on a third party's support structure, the consent of the third party must be attached to the application. If the antenna array is to be erected on a Township support structure, the application shall include a request therefor. If granted, the applicant must enter into a support structure attachment agreement with the Township and pay an annual fee for the use of the Township's facilities.
The application must demonstrate that the applicant possesses a license from the Federal Communications Commission to provide telecommunications services to the public and is authorized to conduct business in the Commonwealth of Pennsylvania.
The Township shall review each application to determine whether such use would have a detrimental effect on public safety as it relates to the rights-of-way or would place an undue physical burden on the rights-of-way.
All applications shall include a sworn affidavit from a radio frequency engineer that the placement or occupancy of the wireless communications facility in the ROW will not interfere with public safety communications and the usual and customary transmission or reception of radio, television or other communications services enjoyed by adjacent residential and nonresidential properties.
In considering an application for the issuance of a ROW use permit, the Township may use such outside experts as it deems necessary to assist in reviewing the application and determining whether the use proposed by the applicant would have a detrimental effect on public safety or place an undue burden on the right-of-way. In the event the Township deems it necessary to employ an outside expert or experts to advise the Township with respect to a particular application, the reasonable costs of such expert(s) ("expert costs") shall be borne by the applicant. Upon completion of its review of the application, the Township shall present a statement of the expert costs to the applicant for payment. No ROW use permit shall be issued until the applicant pays the expert costs. Payment of expert costs is in addition to, and not in lieu of, the payment of the applicable fees set forth in § 167-8 below. Expert costs are nonrefundable in the event the application is denied.
Decisions to grant or deny an application shall be made on a nondiscriminatory and competitively neutral basis. Upon submission of a fully completed application to the Township and the accompanying fee, the Township shall review the application as follows. The Township shall grant or deny an application within 60 days of its receipt. A decision to deny an application shall be preliminary and shall become final only after the applicant has received the preliminary decision and has been given 10 days to request a hearing before the Township Property Committee of the Board of Commissioners. If such a hearing is not requested, the decision shall become final at the end of the ten-day period. If a hearing is requested, a written record shall be made, and the Township Property Committee shall render a final, written decision supported by substantial evidence contained in the written record within 45 days of the close of the hearing.
The fees and charges prescribed by the Board of Commissioners and which must be paid for installation and maintenance of a wireless communications facility in the Township are set forth in the Fee Schedule contained in Chapter A187, Fees, hereof.
Application fee. The applicant for a right-of-way use permit shall pay the Township an application fee as set forth in the Fee Schedule at Chapter A187. This fee is directly related to the Township's costs in reviewing the application (excluding expert costs). This fee is nonrefundable.
Annual fee. The applicant must also pay an annual ROW use fee as set forth in the Fee Schedule at Chapter A187. This fee is directly related to the Township's costs in managing the use of rights-of-way for the provision of wireless communications service. This fee is nonrefundable.
Persons already authorized by the Township to own, construct, operate or maintain wireless communications facilities in the rights-of-way who are required to obtain a ROW use permit under this article may continue to conduct those activities expressly authorized until the earlier of 1) the expiration of the term of the existing authorization (but not any renewal or extension thereof), or 2) one year after the effective date of this article. Notwithstanding the foregoing, such persons shall apply for a superseding ROW use permit pursuant to this article within 120 days after the effective date of this article and shall be subject to this article to the extent permitted by law.
Persons owning or operating any wireless communications facilities in the rights-of-way, the operation or maintenance of which is not currently authorized but is required to be authorized by this article, shall have 120 days from the effective date of this article to file an application for a ROW use permit. Any person timely filing such an application shall not be subject to a penalty for failure to have such a ROW use permit, as long as said application remains pending; provided, however, that nothing herein shall relieve any person of any liability for its failure to obtain any permit or other authorization required under other provisions of this article, or other Township ordinances or regulations, and nothing herein shall prevent the Township from requiring removal of any facilities installed in violation of this article or other Township ordinances or regulations.
Insurance required. A permittee shall, at all times during the life of a ROW use permit, carry itself and require all of its subcontractors to carry liability, property damage, workers' compensation, and vehicle insurance issued to the permittee by an insurance company licensed to do business in the Commonwealth of Pennsylvania in an amount and form acceptable to the Township as set forth in the permit. A permittee and all of its subcontractors shall name the Township as an additional insured on their liability insurance policies for whom defense will be provided as to all such coverages. All required insurance coverage shall provide for 30 days' written notice to the Township in the event of material alteration or cancellation of such coverage prior to the effective date of such material alteration or cancellation. A permittee shall provide appropriate insurance certificates to the Township within 30 days after the issuance of a permit and annually thereafter. Any certificate of insurance presented to the Township shall verify that the permittee and all of its subcontractors are insured against claims for personal injury, including death, as well as claims for property damage arising out of the permittee's use and occupancy of the rights-of-way. The Township may accept a plan of self-insurance as a substitute for such insurance if the Township determines that such selfinsurance adequately protects the Township and the public.
Indemnification required. Each permittee and all of its subcontractors shall, at their sole cost and expense, indemnify, hold harmless, and defend the Township, its officials, boards, commissions, commissioners, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its wireless communications facilities in any right-of-way, or in any way arising out of the permittee's use or occupancy of the rights-of-way, except that a permittee shall not indemnify, hold harmless and defend the Township in connection with any negligent or malicious act or omission attributable to the Township. This provision shall include, but is not limited to, the Township's reasonable attorneys' fees, expert fees, court costs, and any other costs incurred in defending against any such claim, suit or proceeding.
A ROW use permit may be transferred provided that:
The permittee notifies the Township of its intent to transfer the ROW use permit in writing at least 30 days prior to the transfer;
The permittee is not in violation of any of the conditions of the ROW use permit or any provisions of this article; and
The transferee accepts the transfer and is a party to a current ROW use agreement with the Township.
The Township may suspend a ROW use permit in the event any one or more of the following has occurred:
The permittee shall have caused damage to Township property or the right-of-way without the prior consent of the Township (except in the case of an emergency) and without completing proper restoration;
The permittee's use or occupation of the right-of-way has had a detrimental effect on public safety;
The permittee failed to pay fees and charges required under this article;
The permittee and all of its subcontractors failed to indemnify, hold harmless, and insure the Township in accordance with the provisions contained in § 167-10 of this article.
The permittee provided false, misleading, or intentionally incomplete information on the ROW use permit application.
If the Township has reason to believe that one or more of the above events has occurred, it shall notify the permittee in writing via certified mail. The permittee shall have 30 days to cure the violation, unless the Township reasonably determines that the event is an emergency, in which case the Township may impose a shorter time period to cure the violation.
If the permittee fails to cure the violation within the specified time period, the Township may immediately suspend the right-of-way use permit and provide the permittee with written notice via certified mail of its intent to terminate the permit and stating its reasons. A suspension shall be brought to the attention of the Board of Commissioners at its next meeting, at which time the Board of Commissioners shall be permitted to uphold or withdraw the suspension. The permittee shall be provided an opportunity to be heard at such meeting. In addition, the Township may proceed with any other available remedies as set forth in § 167-18 of this article.
In addition to all other rights and powers reserved by the Township, the Township reserves the right to terminate a ROW use permit and all rights and privileges of a permittee for any of the following reasons:
A permittee, after 30 days' prior written notice, fails to comply with any of the material provisions of the ROW use permit or this article;
A permittee attempts to or does practice any fraud or deceit in its conduct or relations with the Township pursuant to the permit; or
The permittee abandons the wireless communications facility.
No termination shall be effective unless and until the Board of Commissioners shall have adopted a resolution setting forth the cause and reason for the termination and the effective date, which resolution shall not be adopted without 30 days' prior written notice via certified mail to the permittee and an opportunity for the permittee to be heard and to present evidence before the Board of Commissioners on the proposed resolution.
Within 120 days of the expiration or termination of a ROW use permit, whether by action of the Township or otherwise, the permittee shall remove the wireless communications facility from the right-of-way and shall restore the right-of-way to a condition satisfactory to the Township. If such removal is not completed within six months of the expiration/termination, the Township may deem any facilities or other property not removed as abandoned. The Township may remove the facilities and restore the right-of-way at the sole expense of the permittee. The permittee's obligation to remove its facilities and restore the right-of-way shall survive the expiration/termination of the ROW use permit.
The Township shall require the relocation of a wireless communications facility at the permittee's expense if necessary to accommodate the location or relocation of the ROW facilities of the Township or a public utility or to protect the public safety.
Inspections. The Township may inspect any wireless communications facilities to determine compliance with the terms of this article and other applicable laws and regulations. Permittees are required to cooperate with all such inspections and to provide information requested by the Township as part of the inspection.
Reporting. The Township may require the submission of reasonable information by the permittee relating to its use and occupation of the rights-of-way as part of the application process or otherwise. All information provided to the Township shall be maintained by the Township as proprietary and confidential if such information is so designated in good faith prior to the time it is provided to the Township by the applicant.
Any person violating the prohibitions in § 167-5A (ROW use permit required) of this article shall, upon summary conviction before any District Justice, pay a fine of no more than $600. A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues.
[Amended 3-12-2012 by Ord. No. 2660]
If the Township determines that a permittee is in violation of this article or a ROW use permit, the Township shall notify the permittee of the violation(s) in writing via certified mail and provide the permittee with 30 days to cure the violation(s), unless the Township reasonably determines that the event is an emergency, in which case the Township may impose a shorter time period to cure the violation. The Township, in its reasonable discretion, may provide a longer period of time to cure the violation(s) if the nature of the violation(s) is such that it cannot be fully cured within 30 days. If the permittee fails to cure the violation(s) within the time provided, the permittee shall pay, upon summary conviction before any District Justice, a fine of no more than $600. A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues.
[Amended 3-12-2012 by Ord. No. 2660]
In the case of an emergency which is discovered by the Township or reported to the Township, the Township shall notify the permittee via the permittee's emergency telephone number. In the event that the permittee does not repair the emergency within six hours, the Township may repair the emergency at the permittee's expense.
In addition to any other remedy, the Township may seek an injunction to mitigate or terminate any violation hereunder or employ any other remedy available at law or in equity.
The failure of the Township to insist on timely performance or compliance by any person holding a ROW use permit shall not constitute a waiver of the Township's right to later insist on timely performance or compliance by that person or any other person holding a ROW use permit.
No ROW use permit shall estop or limit the Township in the full exercise of its governmental powers to protect the health and safety of the public, and all other governmental powers may be fully exercised except as expressly provided herein.