Any wireless facilities permit issued under this article 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.
For purposes of this article, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meanings 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.
- ACCESSORY FACILITY OR STRUCTURE
- 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.
- ANTENNA
- A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals. Such shall include but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the Borough's siting, building and permitting authority.
- APPLICANT
- Any wireless service provider submitting an application for a wireless facilities permit for wireless telecommunications facilities.
- APPLICATION
- All necessary and appropriate documentation that an applicant submits in order to receive a wireless facilities permit for wireless telecommunications facilities.
- BOARD
- The Board of Council Members of Mars Borough.
- BOROUGH
- Mars Borough.
- CO-LOCATION
- The use of a tower or structure to support antennae for the provision of wireless services without increasing the height of the tower or structure.
- COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
- The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be commercially impracticable and shall not render an act or the terms of an agreement commercially impracticable.
- COMPLETED APPLICATION
- An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.
- FAA
- The Federal Aviation Administration, or its duly designated and authorized successor agency.
- FCC
- The Federal Communications Commission, or its duly designated and authorized successor agency.
- HEIGHT
- 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 or lightening-protection device.
- MODIFICATION
- The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless facility, such as antennas, cabling, radios, equipment shelters, landscaping, fencing, or utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or an upgrade or changing out of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.
- NIER
- Nonionizing electromagnetic radiation.
- PERSON
- Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or any other entity.
- PERSONAL WIRELESS FACILITY
- See definition for "wireless telecommunications facilities."
- PERSONAL WIRELESS SERVICES or PWS or PERSONAL TELECOMMUNICATIONS SERVICE or PCS
- The same meaning as defined and used in the 1996 Telecommunications Act.[1]
- PUBLIC HEARING
- The same meaning as defined and used in the Pennsylvania Municipalities Planning Code.[2]
- PUBLIC NOTICE
- The same meaning as defined and used in the Pennsylvania Municipalities Planning Code.[3]
- STATE
- The Commonwealth of Pennsylvania.
- STEALTH or STEALTH TECHNOLOGY
- A design intended to minimize adverse aesthetic and visual impacts on 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, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
- TELECOMMUNICATIONS
- The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
- TELECOMMUNICATIONS SITE
- See definition for "wireless telecommunications facilities."
- TELECOMMUNICATIONS STRUCTURE
- A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
- TEMPORARY
- Temporary in relation to all aspects and components of this article; something intended to or that does exist for fewer than 90 days.
- WIRELESS FACILITIES PERMIT
- 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.
- WIRELESS TELECOMMUNICATIONS FACILITIES and TELECOMMUNICATIONS TOWER and TOWER and TELECOMMUNICATIONS SITE and PERSONAL WIRELESS FACILITY
- A structure, facility or location designed, or intended to be used as, or used to support, antennas or other transmitting or receiving devices. This includes, without limit, towers of all types and kinds and structures that employ camouflage technology, including but not limited to structures, such as a multistory building, church steeple, silo, water tower, sign or other structures that can be used to mitigate the visual impact of an antenna, or the functional equivalent of such, including all related facilities, such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services, whether or not licensed by the FCC, but not expressly exempt from the Borough siting, building and permitting authority, excluding those used exclusively for the Borough's fire or police or exclusively for private, noncommercial radio and television reception and private citizens' bands, amateur radio and other similar noncommercial telecommunications where the height of the facility is below the height limits set forth in this article.
[1]:
Editor's Note: See P.L. No. 104-104 (1996).
[2]:
Editor's Note: See 53 P.S. § 10101 et seq.
[3]:
Editor's Note: See 53 P.S. § 10101 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, the nature
and character of the community and neighborhood and other aspects
of the quality of life specifically listed elsewhere in this article,
the Borough hereby adopts an overall policy with respect to a wireless
facilities permit for wireless telecommunications facilities for the
express purpose of achieving the following goals:
A.
Implementing an application process for person(s) seeking a wireless
facilities permit for wireless telecommunications facilities.
B.
Establishing a policy for examining an application for and issuing
a wireless facilities permit for wireless telecommunications facilities
that is both fair and consistent.
C.
Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers.
D.
Promoting and encouraging, wherever possible, the placement, height
and quantity of wireless telecommunications facilities in such a manner,
including but not limited to the use of stealth technology, to minimize
adverse aesthetic and visual impacts on 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, which shall mean using the least visually and physically
intrusive facility that is not technologically or commercially impracticable
under the facts and circumstances.
A.
All applicants for a wireless facilities permit for wireless telecommunications
facilities or any modification of such facility shall comply with
the requirements set forth in this section. The Board is the officially
designated agency or body of the Borough to whom applications for
a wireless facilities 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 wireless facilities permits for wireless
telecommunications facilities. The Board of Council Members may, at
its discretion, delegate or designate other official agencies of the
Borough, or others, to accept, review, analyze, evaluate and make
recommendations to the Board with respect to the granting or not granting,
recertifying or not recertifying or revoking wireless facilities permits
for wireless telecommunications facilities.
B.
An application for a wireless facilities 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 Borough, 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 Borough.
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 wireless facilities permit, without exception, unless specifically
granted relief by the Borough, in writing, as well as all applicable
and permissible local codes, ordinances, and regulations, including
any and all applicable Borough, 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 state.
E.
No wireless telecommunications facilities shall be installed or constructed
until the application is reviewed and approved by the Borough, and
the wireless facilities permit has been issued.
F.
No tower owner or manager shall be permitted to submit an application
for a wireless facilities permit for a tower if the tower owner does
not have a signed agreement committing a commercial service provider
to occupy space on the tower.
G.
All applications for the construction or installation of new wireless
telecommunications facilities shall contain the information hereinafter
set forth. The application shall be signed by an authorized individual
on behalf of the applicant. Where a certification is called for, such
certification shall bear the signature and seal of a professional
engineer licensed in the state. The application shall include the
following information:
(1)
The name, address and phone number of the person preparing the report;
(2)
The name, address, and phone number of the property owner, operator,
and applicant, including the legal form of the applicant;
(3)
The postal address and Tax Map parcel number of the property;
(4)
The zoning district or designation in which the property is situated;
(5)
Size of the property, stated both in square feet and lot line dimensions,
and a diagram showing the location of all lot lines;
(6)
The location of the nearest residential structure;
(7)
The location, size and height of all structures on the property which
is the subject of the application;
(8)
The location, size and height of all proposed and existing antennae
and all appurtenant structures;
(9)
The type, locations and dimensions of all proposed and existing landscaping
and fencing;
(10)
The number, type and design of the tower(s) and antenna(s) proposed
and the basis for the calculations of the tower's capacity to
accommodate multiple users;
(11)
The make, model and manufacturer of the tower and antenna(s);
(12)
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;
(13)
The frequency, modulation and class of service of radio or other
transmitting equipment;
(14)
The actual intended transmission and the maximum effective radiated
power of the antenna(s);
(15)
Direction of maximum lobes and associated radiation of the antenna(s);
(16)
Certification that the NIER levels at the proposed site are
within the threshold levels adopted by the FCC;
(17)
Certification that the proposed antenna(s) will not cause interference
with other telecommunications devices;
(18)
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities; and
(19)
Certification that a topographic and geomorphologic study and
analysis has been conducted and, taking into account the subsurface
and substrata and the proposed drainage plan, that the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site.
H.
In the case of a new tower, the applicant shall be required to submit
a written report demonstrating its meaningful efforts to secure shared
use of existing towers or the use of alternative buildings or other
structures within the Borough or surrounding areas. Copies of written
requests and responses for shared use shall be provided to the Borough
in the application, along with any letters of rejection stating the
reason for rejection.
I.
The applicant shall certify that the telecommunications facility,
foundation and attachments are designed and will be constructed to
meet all Borough, state and federal structural requirements for loads,
including wind and ice loads.
J.
The applicant shall certify that the wireless telecommunications
facilities will be effectively grounded and bonded so as to protect
persons and property and installed with appropriate surge protectors.
K.
An applicant may be required to submit an environmental assessment
analysis and a visual addendum. Based on the results of the analysis,
including the visual addendum, the Borough may require submission
of a more detailed visual analysis. The scope of the required environmental
and visual assessment will be reviewed at the preapplication meeting.
L.
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 from which the tower may be seen.
(2)
Pictorial representations of before-and-after views from key viewpoints
both inside and outside of the Borough as may be appropriate, 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. Guidance will be provided 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
as relates to the need or appropriateness of screening.
M.
The applicant shall demonstrate and provide, in writing and/or by
drawing, how it shall effectively screen from view the base and all
related facilities and structures of the proposed wireless telecommunications
facilities.
N.
Any and all representations made by the applicant to the Borough
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 Borough.
O.
All utilities at a wireless telecommunications facilities site shall
be installed underground and in compliance with all laws, ordinances,
rules and regulations of the Borough, including specifically, but
not limited to, the National Electrical Safety Code and the National
Electrical Code, where appropriate.
P.
All wireless telecommunications facilities shall contain a demonstration
that the facility be sited so as to be the least visually intrusive
reasonably possible and thereby 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 facility.
Q.
Both the wireless telecommunications facility and any and all accessory
or associated facilities shall maximize the 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 may be required by the Borough.
R.
At a telecommunications site, an access road, turnaround space 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 the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
S.
A person who holds a wireless facilities 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, state, or
federal government, 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.[1] In the event of a conflict between or among any of the
preceding, the more stringent shall apply.
[1]:
Editor's Note: See Ch. 107, Construction Codes, Uniform.
T.
A holder of a wireless facilities permit granted under this article
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.
U.
An applicant shall submit to the Borough 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.
V.
The applicant shall examine the feasibility of designing a proposed
tower to accommodate future demand for at least five additional commercial
applications, for example, future co-locations. The 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 provisions of future shared usage of the 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 towers.
W.
Shared use.
(1)
The owner of the proposed new tower, and his/her successors in interest,
shall negotiate in good faith for the shared use of the proposed tower
by other wireless service providers in the future and shall:
(a)
Respond within 60 days to a request for information from a potential
shared-use applicant.
(b)
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers.
(c)
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.
(2)
Failure to abide by the conditions outlined above may be grounds
for revocation of the wireless facilities permit for the tower.
X.
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 shall also
include a site visit if there has not been a prior site visit for
the requested site. Costs of the Borough's consultants to prepare
for and attend the preapplication meeting will be borne by the applicant.
Y.
The holder of a wireless facilities permit shall notify the Borough
of any intended modification of a wireless telecommunications facility
and shall apply to the Borough to modify, relocate or rebuild a wireless
telecommunications facility.
Z.
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. The applicant shall arrange to fly, or raise
upon a temporary mast, a minimum of a three-foot-in-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 seven and 14 days in advance of the first test date
in a newspaper with a general circulation in the Borough. The applicant
shall inform the Borough, in writing, of the dates and times of the
test at least 14 days in advance. The balloon shall be flown for at
least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m.
on the dates chosen. The primary date shall be on a weekend, but in
case of poor weather on the initial date, the secondary date may be
on a weekday.
AA.
The applicant will provide a written copy of an analysis, completed
by a qualified individual or organization, to determine if the tower
or existing structure intended to support wireless facilities requires
lighting under Federal Aviation Administration Regulations, 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, Subsection A(1) being the highest priority
and Subsection A(8) being the lowest priority:
(1)
On existing towers or other structures, without increasing the height
of the tower or structure.
(2)
On Borough-owned properties.
(3)
On other property in the Borough zoned H-I Heavy Industrial.
(4)
On other property in the Borough zoned L-I Light Industrial.
(5)
On other property in the Borough zoned C Commercial or R-4 Residential.
(6)
On other property in the Borough zoned R-3 Residential.
(7)
On other property in the Borough zoned R-2 Residential.
(8)
On other property in the Borough zoned R-1 Residential.
B.
If the proposed site is not proposed for 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 the
site proposed is the only site leased or selected. An application
shall address co-location as an option. If such option is not proposed,
the applicant must explain to the reasonable satisfaction of the Borough
why co-location is commercially or otherwise impracticable. Agreements
between providers limiting or prohibiting co-location shall not be
a valid basis for any claim of commercial impracticability or hardship.
D.
Notwithstanding the above, the Borough may approve any site located
within an area in the above list of priorities, provided that the
Borough finds that the proposed site is in the best interest of the
health, safety and welfare of the Borough and its inhabitants and
will not have a deleterious effect on the nature and character of
the community and neighborhood.
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 appropriate, based
on selecting a site of lower priority, a detailed written explanation
as to why sites of a higher priority were not selected shall be included
with the application.
F.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Borough may
disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements.
(2)
Conflict with the historic nature or character of a neighborhood
or historical district.
(3)
The use or construction of wireless telecommunications facilities
which is contrary to an already-stated purpose of a specific zoning
or land use designation.
(4)
The placement and location of wireless telecommunications facilities
which could create an unacceptable risk, or the reasonable probability
of such, to residents, the public, employees and agents of the Borough,
or employees of the service provider or other service providers.
(5)
Conflicts with the provisions of this article.
A.
Locating on existing towers or other structures without increasing
the height shall be preferred by the Borough, as opposed to the construction
of a new tower. The applicant shall submit a comprehensive report
inventorying existing towers and other suitable structures within
two miles of the location of any proposed new tower, unless the applicant
can show that some other distance is more reasonable and demonstrate
conclusively why an existing tower or other suitable structure can
not be used.
B.
An applicant intending to locate on an existing tower or other suitable
structure shall be required to document the intent of the existing
owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum antenna array technologically
required to provide service primarily and essentially within the Borough,
to the extent practicable, unless good cause is shown.
A.
The applicant shall submit documentation justifying the total height
of any tower, facility and/or antenna and the basis therefor. Such
documentation will be analyzed in the context of the justification
of the height needed to provide service primarily and essentially
within the Borough, to the extent practicable, unless good cause is
shown.
B.
No tower constructed after the effective date of this article, including
allowing for all attachments, shall exceed that height which shall
permit operation without required artificial lighting of any kind
in accordance with municipal, Borough, 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.
Towers shall, as deemed appropriate, be galvanized or painted with
a rust-preventive paint of an appropriate color to harmonize with
the surroundings and shall be maintained in accordance with the requirements
of this article.
C.
If lighting is required, the applicant shall provide a detailed plan
for sufficient lighting of as unobtrusive and inoffensive an effect
as is permissible under state and federal regulations.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
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 collided
with; and
B.
Transmitters and telecommunications control points shall be installed
in such a manner 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 in order to provide adequate notification
to persons in the immediate area of the presence of an antenna that
has transmission capabilities and 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 on the equipment shelter or cabinet of
the applicant and be visible from the access point of the site and
must identify the equipment owner of the shelter or cabinet. The sign
shall not be lighted, unless lighting is required by applicable law,
rule or regulation. No other signage, including advertising, shall
be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by the greater of the following
distances: a distance equal to the height of the proposed tower or
wireless telecommunications facility structure, plus 10% of the height
of the tower or structure, or the existing setback requirement 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 Borough may hire any consultant and/or expert necessary to assist
the Borough in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, 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 Borough in connection with the review of any
application, including the construction and modification of the site,
once permitted. The initial deposit shall be $8,500. The placement
of the $8,500 with the Borough shall precede the preapplication meeting.
The Borough will maintain a separate escrow account for all such funds.
The Borough's consultants/experts shall invoice the Borough for
its services in reviewing the application, including the construction
and modification of the site, once permitted. If at any time during
the process this escrow account has a balance less than $2,500, the
applicant shall immediately, upon notification by the Borough, replenish
said escrow account so that it has a balance of at least $5,000. Such
additional escrow funds shall be deposited with the Borough before
any further action or consideration is taken on the application. In
the event that the amount held in escrow by the Borough is more than
the amount of the actual invoicing at the conclusion of the project,
the remaining balance shall be promptly refunded to the applicant.
C.
The total amount of the funds needed as 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 to complete the necessary review, analysis and inspection of
any construction or modification.
A.
No person shall be permitted to site, place, build, construct, modify
or prepare any site for the placement or use of wireless telecommunications
facilities as of the effective date of this article without having
first obtained a wireless facilities permit for wireless telecommunications
facilities. Notwithstanding anything to the contrary in this section,
no wireless facilities permit shall be required for those noncommercial
exceptions noted in the definition of "wireless telecommunications
facilities."
B.
All wireless telecommunications facilities existing on or before
the effective date of this article shall be allowed to continue as
they presently exist; provided, however, that any visible modification
of an existing wireless telecommunications facility must comply with
this article.
A.
Prior to the approval of any application for a wireless facilities
permit for wireless telecommunications facilities, a public hearing
shall be held by the Borough, pursuant to the requirements for public
notice. The Borough will notify nearby landowners whose property is
located within 1,500 feet of any property line of the lot or parcel
on which the new wireless telecommunications facilities are proposed
to be located, as required for ordinances to enforce the general powers
of the Borough.
B.
There shall be no public hearing required for an application to co-locate
on an existing tower or other structure, as long as there is no proposed
increase in the height of the tower or structure, including attachments
thereto.
A.
The Borough will undertake a review of an application pursuant to
this article 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 Borough 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 Borough may approve, approve with conditions, or deny a wireless
facilities 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 Borough approves the wireless facilities permit for wireless
telecommunications facilities, then the applicant shall be notified
of such approval, in writing, within 10 calendar days of the Borough's
action, and the wireless facilities permit shall be issued within
30 days after such approval. The applicant will also be required to
obtain all necessary building permits and must also comply with the
zoning and subdivision/land development requirements of the Borough.
E.
If the Borough denies the wireless facilities permit for wireless
telecommunications facilities, then the applicant shall be notified
of such denial, in writing, within 10 calendar days of the Borough's
action.
F.
Any wireless telecommunications facility permitted under this article
shall be started within 90 days of the date of the grant of the wireless
facilities permit and be completed, be granted a certificate of completion
and provide service within 180 days of the date of the grant of the
wireless facilities permit. If the requirements of this subsection
are not complied with, absent good cause shown, which shall be for
situations beyond the control of the permittee only, the wireless
telecommunications facility special exception shall be deemed to have
been abandoned, the wireless facilities permit shall be revoked, and
the provisions of § 270-113 shall be enforced.
A.
Between 12 months and six months prior to the five-year anniversary
date after the effective date of the wireless facilities permit and
all subsequent five-year anniversaries of the effective date of the
original wireless facilities permit for wireless telecommunications
facilities, the holder of a wireless facilities permit for such wireless
telecommunications facilities shall submit a signed, written request
to the Borough for recertification. In the written request for recertification,
the holder of such wireless facilities permit shall note the following:
(1)
The name of the holder of the wireless facilities permit for
the wireless telecommunications facilities.
(2)
If applicable, the number or title of the wireless facilities
permit.
(3)
The date of the original granting of the wireless facilities
permit.
(4)
Whether the wireless telecommunications facilities have been
moved, relocated, rebuilt, or otherwise visibly modified since the
issuance of the wireless facilities permit and, if so, in what manner.
(5)
If the wireless telecommunications facilities have been moved,
relocated, rebuilt, or otherwise visibly modified, then whether the
Borough approved such action, and under what terms and conditions,
and whether those terms and conditions were complied with.
(6)
That the wireless telecommunications facilities are in compliance
with the wireless facilities permit and in compliance with all applicable
codes, laws, rules and regulations, including that all federal- and
state-mandated reports have been timely filed and accepted.
(7)
Recertification that the tower and attachments both are designed
and constructed and continue to meet all local, Borough, state and
federal structural requirements for loads, including wind and ice
loads. Such recertification shall be by a professional engineer, licensed
in the state, who is not on the Boroughs unacceptable professional
engineers list, the cost of which shall be borne by the applicant.
B.
If, after such review, the Borough determines that the permitted
wireless telecommunications facilities are in compliance with the
wireless facilities permit and all applicable statutes, laws, local
laws, ordinances, codes, rules and regulations, then the Borough may
issue a recertification of the wireless facilities permit for the
wireless telecommunications facilities, which may include any new
provisions or conditions that are mutually agreed upon or that are
required by applicable statutes, laws, ordinances, codes, rules or
regulations. If, after such review, it is determined that the permitted
wireless telecommunications facilities are not in compliance with
the wireless facilities permit and all applicable statutes, laws,
ordinances, codes, rules and regulations, then the Borough may refuse
to issue a recertification wireless facilities 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 the decision by the Borough until such time as the
facility is brought into compliance. Any decision requiring the cessation
of use of the facility or imposing a penalty shall be in writing and
supported by substantial evidence contained in a written record and
shall be promptly provided to the owner of the facility. The failure
to file on time any federal- or state-mandated report or to have requested
a modification of the wireless facilities permit when required by
this article or any substantial misstatement on the recertification
request shall be sufficient in and of itself to refuse recertification.
C.
If the applicant has submitted all of the information requested and
required by this article, and if the review is not completed, as noted
in Subsection B of this section, prior to the five-year anniversary
date of the wireless facilities permit, or subsequent five-year anniversaries,
then the applicant for the permitted wireless telecommunications facilities
shall receive an extension of the wireless facilities permit for up
to six months, in order for the completion of the review.
D.
If the holder of a wireless facilities permit for wireless telecommunications
facilities does not submit a request for recertification of such wireless
facilities permit within the time frame noted in Subsection A of this
section, then such wireless facilities permit and any authorizations
granted thereunder shall cease to exist on the date of the fifth anniversary
of the original granting of the wireless facilities permit, or subsequent
five-year anniversaries, unless the holder of the wireless facilities
permit adequately demonstrates that extenuating circumstances prevented
a timely recertification request. If the Borough agrees that there
were legitimately extenuating circumstances, then the holder of the
wireless facilities permit may submit a late recertification request
or application for a new wireless facilities permit.
The extent and parameters of a wireless facilities permit for
wireless telecommunications facilities shall be as follows:
A.
Such wireless facilities permit shall be nonexclusive.
B.
Such wireless facilities permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Borough.
C.
Such wireless facilities 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 wireless facilities
permit or for a material violation of this article after prior written
notice to the holder of the wireless facilities permit.
A.
At the time that a person submits an application for a wireless facilities
permit for a new tower, such person shall pay a nonrefundable application
fee of $5,000 to the Borough. If the application is for a wireless
facilities permit for co-locating on an existing tower or other suitable
structure, where no increase in height of the tower or structure is
required, the nonrefundable fee shall be $2,000.
B.
No application fee is required in order to recertify a wireless facilities
permit for wireless telecommunications facilities, unless there has
been a visible modification of the wireless telecommunications facility
since the date of the issuance of the existing wireless facilities
permit for which the conditions of the wireless facilities 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 facility's 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 Borough to assure the faithful performance of the terms and
conditions of this article and conditions of any wireless facilities
permit issued pursuant to this article. Notwithstanding anything to
the contrary, the security for a co-location on an existing wireless
communications facility shall be in the amount of at least $25,000.
The full amount of the bond or security shall remain in full force
and effect throughout the term of the wireless facilities permit and/or
until any necessary site restoration is completed to restore the site
to a condition comparable to that which existed prior to the issuance
of the original wireless facilities permit.
In order to verify that the holder of a wireless facilities
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.
The holder of the wireless facilities permit shall, annually,
certify to the Borough that NIER levels at the site are within the
threshold levels adopted by the FCC.
A.
A holder of a wireless facilities 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 wireless facilities permit,
in amounts as set forth below:
B.
The commercial general liability insurance policy shall specifically
include the Borough and its officers, boards, 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 state and with
a Best 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 facility
is initiated, but in no case later than 15 days after the grant of
the wireless facilities permit, the holder of the wireless facilities
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 article, 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, boards, 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
facility; excepting, however, any portion of such claims, suits, demands,
causes of action or award of damages as may be attributable to the
gross negligence or intentional acts or omissions of the Borough.
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.
In the event of a violation of this article or any wireless
facilities permit issued pursuant to this article, the Borough may
impose and collect, and the holder of the wireless facilities permit
for the wireless telecommunications facility shall pay to the Borough,
fines and penalties as set forth in Article XVIII of this chapter.
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 article
or of the wireless facilities permit, then the Borough shall notify
the holder of the wireless facilities 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 article,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Borough 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 article or of the wireless facilities permit,
or substantial steps are not taken in order to bring the affected
wireless telecommunications facilities into compliance, then the Borough
may revoke such wireless facilities permit for wireless telecommunications
facilities and shall notify the holder of the wireless facilities
permit within 48 hours of such action.
A.
Under the following circumstances, the Borough 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 consecutive 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 it creates 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 wireless facilities permit or any other necessary
authorization.
B.
If the Borough makes such a determination as noted in Subsection
A of this section, then the Borough shall notify the landowner and
holder of the wireless facilities permit for the wireless telecommunications
facilities that said wireless telecommunications facilities are to
be removed within the time specified in the notice. The Borough may
approve an interim temporary use agreement/permit, such as to enable
the sale of the wireless telecommunications facilities.
C.
The landowner or holder of the wireless facilities 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 Borough. However, if the owner of the property upon which the
former 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 Borough. The retention
of such an accessway shall in no manner be considered a waiver of
any future subdivision access road requirements of Butler County or
the Borough.
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 and landowner have
received notice, then the Borough may direct its own employees or
contract with an independent contractor to remove the wireless telecommunications
facilities at the sole expense of the landowner or wireless facilities
permit holder, its successors or assigns. The cost of the removal
carried out under this section shall become a municipal lien against
the land and the personal property and former fixtures so removed.
E.
If the Borough removes, or causes to be removed, wireless telecommunications
facilities, and the landowner and/or owner of the wireless telecommunications
facilities does not pay the cost of removal and/or remove it from
the site to a lawful location within 10 days of being notified by
regular mail of the completion of the taking down of the facility,
then the Borough may treat the facilities as abandoned and sell them
and their components.
F.
Notwithstanding anything in this section to the contrary, the Borough
may approve a temporary use permit/agreement for the wireless telecommunications
facilities, for no more 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 wireless facilities
permit, subject to the approval of the Borough, and an agreement to
such plan shall be executed by the holder of the wireless facilities
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, waiver or exemption from any
aspect or requirement of this article may request such at the preapplication
meeting, provided that the relief or exemption is contained in the
original application for either a wireless facilities permit or, in
the case of an existing or previously granted wireless facilities
permit, a request for modification of its tower and/or facilities.
Such relief may be temporary or permanent, partial or complete. However,
the burden of proving the need for the requested relief, waiver or
exemption is solely on the applicant to prove. The applicant shall
bear all costs of the Borough in considering the request and the relief,
waiver or exemption. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted, the relief, waiver or exemption will have no significant
effect on the health, safety and welfare of the Borough, its residents
and other service providers.
A.
The Borough may, at any time, conduct a review and examination of
this entire article.
B.
If, after such a periodic review and examination of this article,
the Borough determines that one or more provisions of this article
should be amended, repealed, revised, clarified, or deleted, then
the Borough 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 Borough
may repeal this entire article at any time.
A.
To the extent that the holder of a wireless facilities 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 wireless facilities 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 wireless facilities permit for wireless telecommunications
facilities, then the holder of such a wireless facilities 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.
