[HISTORY: Adopted by the Borough Council of the Borough of
Kenhorst as indicated in article histories. Amendments noted where
applicable.]
[Adopted 7-6-2017 by Ord.
No. 585]
The following regulations shall apply to all nontower wireless
communications facilities that do not substantially change the physical
dimensions of the wireless support structure to which they are attached:
A.
Permitted
in all zones, subject to the Borough's zoning regulations.[1] Nontower WCFs are permitted in all zones, subject to the
restrictions and conditions prescribed below and subject to the prior
written approval of the Borough, as well as any zoning regulations.
Applicants proposing installations on existing buildings or towers
shall submit evidence of agreements and/or easements necessary to
provide access to the existing building or tower so that installation
and maintenance of the equipment can be accomplished.
B.
Upon receipt
of an application for any non-tower-based WCF, the Borough shall mail
notice thereof to the owner or owners of every property on which is
located a residential use on the same street within 500 linear feet
of the parcel or property of the proposed facility and of every residential
property not on the same street within 500 linear feet of the parcel
or property of the proposed facility.
C.
Standard
of design and care. Any nontower WCF shall be designed, constructed,
operated, maintained, repaired, modified and removed in strict compliance
with all current applicable technical, safety and safety-related codes,
including, but not limited to, the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, and National Electrical Code. Design certification from a Pennsylvania-registered
professional engineer is required to attest that the existing structure
can adequately support the proposed equipment installation. Detailed
construction and elevation drawings indicating antenna locations and
mounting design shall be submitted by the applicant. Any WCF shall
at all times be kept and maintained in good condition, order and repair
by qualified maintenance and construction personnel, so that the same
shall not endanger the life of any person or any property in the Borough.
D.
Wind. Any
nontower WCF structures shall be designed to withstand the effects
of wind according to the standard designed by the American National
Standards Institute as prepared by the engineering departments of
the Electronics Industry Association and Telecommunications Industry
Association (ANSFEINTIA-222-E Code, as amended).
E.
Public
safety communications. No nontower WCF shall interfere with public
safety communications or the reception of broadband, television, radio
or other communication services enjoyed by occupants of nearby properties.
F.
Aviation
safety. Nontower WCFs shall comply with all federal and state laws
and regulations concerning aviation safety. Applications for nontower
WCFs shall be submitted to the Reading Regional Airport Authority
for comments. The WCF applicant shall furnish a statement from the
FCC, FAA and Commonwealth Bureau of Aviation that the nontower WCF
complies with applicable regulations or is exempt from these regulations.
G.
Radio frequency
emissions. No nontower WCF may, by itself or in conjunction with other
WCFs, generate radio frequency emissions in excess of the standards
and regulations of the FCC, including but not limited to the FCC Office
of Engineering Technology Bulletin 65 entitled "Evaluating Compliance
with FCC Guidelines for Human Exposure to Radio Frequency Electromagnetic
Fields," as amended.
H.
Removal.
In the event that use of a nontower WCF is discontinued, the owner
shall provide written notice to the Borough of its intent to discontinue
use and the date when the use shall be discontinued. Unused or abandoned
WCFs or portions of WCFs shall be removed as follows:
(1)
All
abandoned or unused WCFs and accessory facilities shall be removed
within three months of the cessation of operations at the site unless
a time extension is approved by the Borough.
(2)
If
the WCF or accessory facility is not removed within three months of
the cessation of operations at a site, or within any longer period
approved by the Borough, the WCF and/or associated facilities and
equipment may be removed by the Borough and the cost of removal assessed
against the owner of the WCF through any process permitted by law,
including but not limited to liens, judgments or equitable relief.
I.
Timing
of approval. Within 30 calendar days of the date that an application
for a nontower WCF is filed with the Borough, the Borough shall notify
the applicant, in writing, of any information that may be required
to complete such application. Within 90 calendar days of receipt of
a complete application, the Borough shall make its final decision
on whether to approve the application and shall advise the applicant,
in writing, of such decision. If additional information was requested
by the Borough to complete an application, the time required by the
applicant to provide the information shall not be counted toward the
Borough's ninety-day review period.
J.
Permit
fees. The Borough may assess appropriate and reasonable permit fees
directly related to the Borough's actual costs in reviewing and processing
the application for approval of a nontower WCF or $1,500, whichever
is less.
The following regulations shall apply to all nontower wireless
communications facilities that substantially change the wireless support
structure to which they are attached:
A.
Nontower
WCFs are permitted in all zones subject to the restrictions and conditions
prescribed below and subject to the prior written approval of the
Borough.
B.
Upon receipt
of an application for any nontower-based WCF, the Borough shall mail
notice thereof to the owner or owners of every property on which is
located a residential use on the same street within 500 linear feet
of the parcel or property of the proposed facility and of every residential
property not on the same street within 500 linear feet of the parcel
or property of the proposed facility.
C.
Standard
of care. Any nontower WCF shall be designed, constructed, operated,
maintained, repaired, modified and removed in strict compliance with
all current applicable technical, safety and safety-related codes,
including, but not limited to, the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, and National Electrical Code. Any WCF shall at all times be
kept and maintained in good condition, order and repair by qualified
maintenance and construction personnel, so that the same shall not
endanger the life of any person or any property in the Borough.
D.
Historic
buildings. Nontower WCFs may not be located on a property, building
or structure that is listed on either the National or Pennsylvania
Register of Historic Places or the official historic structures and/or
historic districts lists maintained by the Borough, or that has been
designated by the Borough as being of historic significance.
E.
Maintenance.
The following maintenance requirements shall apply:
(1)
The
nontower WCF shall be fully automated and unattended on a daily basis
and shall be visited only for maintenance or emergency repair.
(2)
Such
maintenance shall be performed to ensure the upkeep of the facility
in order to promote the safety and security of the Borough's residents.
(3)
All
maintenance activities shall utilize nothing less than the best available
technology for preventing failures and accidents.
F.
Timing
of approval. Within 30 calendar days of the date that an application
for a nontower WCF is filed with the Borough, the Borough shall notify
the applicant, in writing, of any information that may be required
to complete such application. Within 90 calendar days of receipt of
a complete application, the Borough shall make its final decision
on whether to approve the application and shall advise the applicant,
in writing, of such decision. If additional information was requested
by the Borough to complete an application, the time required by the
applicant to provide the information shall not be counted toward the
Borough's ninety-day review period.
G.
Retention
of experts. The Borough may hire any consultant(s) and/or expert(s)
necessary to assist the Borough in reviewing and evaluating the application
for approval of the WCF and, once approved, in reviewing and evaluating
any potential violations of the terms and conditions of this article.
The applicant and/or owner of the WCF shall reimburse the Borough
for all costs of the Borough's consultant(s) in providing expert evaluation
and consultation in connection with these activities.
H.
Bond. Prior
to the issuance of a permit, the owner of each individual nontower
WCF shall, at its own cost and expense, obtain from a surety licensed
to do business in Pennsylvania and maintain a bond or other form of
security acceptable to the Borough Solicitor in an amount of $25,000
for each individual nontower WCF to assure the faithful performance
of the terms and conditions of this article. The bond shall provide
that the Borough may recover from the principal and surety any and
all compensatory damages incurred by the Borough for violations of
this article, after reasonable notice and opportunity to cure. The
owner shall file a copy of the bond with the Borough.
I.
Permit
fees. The Borough may assess appropriate and reasonable permit fees
directly related to the Borough's actual costs in reviewing and processing
the application for approval of a nontower WCF, as well as related
inspection, monitoring and related costs.
The following additional regulations shall apply to nontower
wireless communications facilities located outside the rights-of-way
that substantially change the wireless support structure to which
they are attached:
A.
Development
regulations.
(1)
Nontower
WCFs shall be co-located on existing structures subject to building
code regulations and zoning regulations[1] including, but not limited to, such as existing buildings
or tower-based WCFs, subject to the following conditions:
(2)
An
eight-foot-high security fence shall surround any separate communications
equipment building. Vehicular access to the communications equipment
building shall not interfere with the parking or vehicular circulations
on the site for the principal use.
B.
Design
regulations.
(1)
Nontower
WCFs shall employ stealth technology and be treated to match the supporting
structure in order to minimize aesthetic impact. The application of
the stealth technology chosen by the WCF applicant shall be subject
to the approval of the Borough.
(2)
Nontower
WCFs which are mounted to a building or similar structure may not
exceed a height of 15 feet above the roof or parapet, whichever is
higher, unless the WCF applicant obtains a conditional use permit.
(3)
All
nontower WCF applicants must submit documentation to the Borough justifying
the total height of the nontower structure. Such documentation shall
be analyzed in the context of such justification on an individual
basis.
(4)
Antennas
and their respective accompanying support structures shall be no greater
in diameter than any cross-sectional dimension that is reasonably
necessary for their proper functioning.
C.
Noncommercial
usage exemption. The design regulations enumerated in this subsection
shall not apply to direct broadcast satellite dishes installed for
the purpose of receiving video and related communications services
at residential dwellings.
D.
Removal;
replacement; modification.
(1)
The
removal and replacement of nontower WCFs and/or accessory equipment
for the purpose of upgrading or repairing the WCF is permitted, so
long as such repair or upgrade does not increase the overall size
of the WCF or the number of antennas.
(2)
Any
material modification to a wireless telecommunications facility shall
require a prior amendment to the original permit or authorization.
E.
Visual
or land use impact. The Borough reserves the right to deny an application
for the construction or placement of any nontower WCF based upon visual
and/or land use impact.
F.
Inspection.
The Borough reserves the right to inspect any WCF to ensure compliance
with the provisions of this article and any other provisions found
within the Borough Code or state or federal law. The Borough and/or
its agents shall have the authority to enter the property upon which
a WCF is located at any time upon reasonable notice to the operator
to ensure such compliance.
The following additional regulations shall apply to all nontower
wireless communications facilities located in the rights-of-way:
A.
Co-location.
Nontower WCFs in the ROW shall be co-located on existing poles, such
as existing utility poles or light poles.
B.
Design
requirements.
(1)
WCF
installations located above the surface grade in the public ROW, including,
but not limited to, those on streetlights and joint utility poles
shall consist of equipment components that are no more than six feet
in height and that are compatible in scale and proportion to the structures
upon which they are mounted. All equipment shall be the smallest and
least visibly intrusive equipment feasible.
(2)
Antennas
and all support equipment shall be treated to match the supporting
structure. WCFs and accompanying equipment shall be painted or otherwise
coated to be visually compatible with the support structure upon which
they are mounted.
(3)
Compensation
for ROW use. In addition to permit fees as described above, every
nontower WCF in the ROW is subject to the Borough's right to fix annually
a fair and reasonable compensation to be paid for use and occupancy
of the ROW. Such compensation for ROW use shall be directly related
to the Borough's actual ROW management costs, including, but not limited
to, the costs of the administration and performance of all reviewing,
inspecting, permitting, supervising and other ROW management activities
by the Borough. The owner of each nontower WCF shall pay an annual
fee to the Borough to compensate the Borough for its costs incurred
in connection with the activities described above. The annual ROW
management fee for nontower WCFs shall be determined by the Borough
and authorized by resolution of Borough Council and shall be based
on the Borough's actual ROW management costs as applied to such nontower
WCF.
(4)
Time,
place and manner. The Borough shall determine the time, place and
manner of construction, maintenance, repair and/or removal of all
nontower WCFs in the ROW based on public safety, traffic management,
physical burden on the ROW, and related considerations. For public
utilities, the time, place and manner requirements shall be consistent
with the police powers of the Borough and the requirements of the
Public Utility Code.[1]
[1]
Editor's Note: See 66 Pa.C.S.A. § 101 et seq.
C.
Equipment
location. Nontower WCFs and accessory equipment shall be located so
as not to cause any physical or visual obstruction to pedestrian or
vehicular traffic, or to otherwise create safety hazards to pedestrians
and/or motorists or to otherwise inconvenience public use of the ROW
as determined by the Borough. In addition:
(1)
In
no case shall ground-mounted equipment, walls, or landscaping be located
within 18 inches of the face of the curb.
(2)
Ground-mounted
equipment shall be located underground. In the event an applicant
can demonstrate, to the satisfaction of the Borough Engineer, that
ground-mounted equipment cannot be underground, then all such equipment
shall be screened, to the fullest extent possible, through the use
of landscaping or other decorative features to the satisfaction of
the Borough.
(3)
Required
electrical meter cabinets shall be screened to blend in with the surrounding
area to the satisfaction of the Borough.
D.
Any graffiti
on the tower or on any accessory equipment shall be removed at the
sole expense of the owner within 10 business days of notice of the
existence of the graffiti.
E.
Any underground
vaults related to nontower WCFs shall be reviewed and approved by
the Borough.
F.
Relocation
or removal of facilities. Within 60 days following written notice
from the Borough , or such longer period as the Borough determines
is reasonably necessary or such shorter period in the case of an emergency,
an owner of a WCF in the ROW shall, at its own expense, temporarily
or permanently remove, relocate, change or alter the position of any
WCF when the Borough, consistent with its police powers and applicable
Public Utility Commission regulations, shall have determined that
such removal, relocation, change or alteration is reasonably necessary
under the following circumstances:
(1)
The
construction, repair, maintenance or installation of any Borough or
other public improvement in the right-of-way.
(2)
The
operations of the Borough or other governmental entity in the right-of-way.
(3)
Vacation
of a street or road or the release of a utility easement.
(4)
An
emergency as determined by the Borough.
G.
Visual
or land use impact. The Borough retains the right to deny an application
for the construction or placement of a nontower WCF based upon visual
and/or land use impact.
A.
Penalties.
Any person violating any provision of this section shall be subject
upon finding by a Magisterial District Judge to a penalty not exceeding
$500 for each and every offense, together with attorney's fees and
costs. A separate and distinct violation shall be deemed to be committed
each day on which a violation occurs or continues to occur. In addition
to an action to enforce any penalty imposed by this section and any
other remedy at law or in equity, the Borough may apply to a Federal
District Court for an injunction or other appropriate relief at law
or in equity to enforce compliance with or restrain violation of any
provision of this article.
B.
Determination
of violation. In the event a determination is made that a person has
violated any provision of this section, such person shall be provided
written notice of the determination and the reasons therefor. Except
in the case of an emergency, the person shall have 30 days to cure
the violation. If the nature of the violation is such that it cannot
be fully cured within such time period, the Borough may, in its reasonable
judgment, extend the time period to cure, provided that the person
has commenced to cure and is diligently pursuing its efforts to cure.
If the violation has not been cured within the time allowed, the Borough
may take any and all actions authorized by this section and/or federal
and/or Pennsylvania law and regulations.
The Borough, by granting any permit or taking any other action
pursuant to this section, does not waive, reduce, lessen or impair
the lawful police powers vested in the Borough under applicable federal,
state and local laws and regulations.
