[Added 4-27-2021 by Ord.
No. 2021-11]
b.
To the extent the small wireless facilities Ordinance conflicts with any other ordinance provision, including any other provision in Chapter 4A, outside of the small wireless facilities Ordinance, the small wireless facilities Ordinance shall govern.
c.
If any section, subsection or paragraph of this article be declared
unconstitutional, invalid or inoperative, in whole or in part, by
a court of competent jurisdiction, such chapter, section subchapter
or paragraph shall to the extent that is not held unconstitutional,
invalid or inoperative remain in full force and effect and shall not
affect the remainder of this article.
[Added 4-27-2021 by Ord.
No. 2021-11]
The following definitions shall be applicable to the provisions
of the ordinance:
a.
All definitions of words, terms and phrases that are set forth in
the Communications Act of 1934, P.L. 73-416, as amended by various
statutory enactments including, but not limited to, the Telecommunications
Act of 1996, P.L. 104-104, are incorporated herein and are made apart
hereof.
b.
All definitions of the words, terms and phrases that are set forth
in the portion of the Middle Class Tax Relief and Job Creation Act
of 2012, P.L. 112-96, as codified in 47 U.S.C. § 455, are
incorporated herein and are made a part hereof.
c.
All definitions of words, terms and phrases that are set forth in
the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.,
are incorporated herein and are made apart hereof.
d.
All of the definitions of words, terms and phrases that are set forth
in the Code of Federal Regulations at 47 CFR § 1.6002, as
amended, are incorporated herein and are made a part hereof.
e.
APPLICANT
APPLICATION
PERSONAL WIRELESS SERVICES
PUBLIC RIGHT-OF-WAY
SMALL WIRELESS FACILITY
SMART POLE
SWF PERMIT
UTILITY POLE
In addition to the foregoing, the following words, terms and phrases
shall have the meanings indicated unless an alternate meaning clearly
is discernable from the context in which the word, term or phrase
is used:
A person or entity that applies for an SWF permit.
All of the document(s) submitted by an applicant in furtherance
of obtaining an SWF permit.
As defined in 47 U.S.C. § 332(c)(7)(C), as supplemented
and/or as amended.
The surface, the airspace above the surface and the area
below the surface of any street, road, highway, lane, alley, boulevard
or drive, including the sidewalk, shoulder and area for utilities
owned by the Township of Holmdel within an easement to the public
or other easement owned by the Township of Holmdel.
As defined in the Code of Federal Regulations at 47 CFR § 1.6002(1),
as supplemented and/or as amended.
A decorative utility pole that conceals, disguises or camouflages
one or more small wireless facility installation(s) and may include
other features, such as street lighting, 911 call service access,
public access Wi-Fi and surveillance cameras. A smart pole must allow
for multiple occupants and allow space for municipal use for other
services and/or equipment. Smart poles shall neither have external
laches, external hinges, nor external cabling.
A permit required pursuant to the provisions of this article, and as further defined in Section 4A-72.
A wooden or metal pole that is used by public utilities to
support electrical wires, telephone wires, coaxial cables, fiber-optic
cables and like and similar appurtenances.
f.
In the event that a term, word or phrase is not defined in any of
the aforementioned statutes and is not otherwise defined herein, then
that term, word or phrase shall have its common, ordinary meaning.
[Added 4-27-2021 by Ord.
No. 2021-11]
a.
No person or entity shall place a small wireless facility in any
public right-of-way without obtaining a small wireless facility permit
("SWF permit") and the Township's consent to utilize the public
rights-of-way within the Township, upon the terms set forth in this
article.
b.
No approval or consent granted, or SWF permit issued, pursuant to
this article shall confer any exclusive right, privilege, license
or franchise to occupy or use any public right-of-way within the Township
of Holmdel for the delivery of telecommunications services or for
any other purpose. An SWF permit authorizes an applicant to undertake
only certain activities in accordance with this article.
[Added 4-27-2021 by Ord.
No. 2021-11]
a.
No application for an SWF permit shall be approved if the application
proposes a small wireless facility to be installed upon any structure
within any public right-of-way unless the installation is upon:
1.
A new smart pole that:
(a)
Satisfies the definition of smart pole established in this article;
(b)
Is consistent with the aesthetic requirements specific to smart
poles, if any such standards exist by ordinance or resolution of the
Township Committee, or is otherwise approved for aesthetic purposes
by the Township Committee;
(c)
Is specifically designed to accommodate the reasonable and customary
equipment necessary for a small wireless facility installation; and
(d)
Will accommodate at least three carriers per smart pole; or
2.
A utility pole:
(a)
That was installed on or before the date that this article was
adopted; and
(b)
The small wireless facility complies with the Township's
aesthetic requirements specific to the installation of small wireless
facilities upon preexisting utility poles, if any such standards exist
by ordinance or resolution of the Township Committee, or is otherwise
approved for aesthetic purposes by the Township Committee.
b.
No application for an SWF permit involving installation of a new
smart pole, utility pole, or related infrastructure shall be approved
unless the applicant provides a certification made in good faith,
based upon the assessment of a licensed engineer, and containing a
written summary of the basis of such determination, that after diligent
investigation it cannot meet its service objectives by collocating
on an existing smart pole or utility pole upon which:
c.
No application for an SWF permit shall be approved for a siting that
does not comply with any of the following restrictions:
1.
No small wireless facility shall be located within 500 feet of another
small wireless facility unless it can be established by clear and
convincing evidence in the judgment of the Township that co-location
on an existing or previously approved small wireless facility is not
feasible. The applicant shall possess the burden of proof to establish
and prove any claims of technical incompatibility or inability to
collocate.
2.
No small wireless facility, smart pole, or related infrastructure
shall be installed or maintained in a manner that obstructs or hinders
the usual travel or public safety in a right-of-way or obstructs the
legal use of a right-of-way by a public utility, as defined in N.J.S.A.
48:2-13.
3.
No small wireless facility shall interfere with the safe operation
of traffic control equipment.
4.
No small wireless facility shall interfere with sight lines or clear
zones for transportation or pedestrians.
5.
No small wireless facility shall interfere with compliance with the
federal Americans With Disabilities Act of 1990, 42 U.S.C. § 12101
et seq., or any similar federal or state standards regarding pedestrian
movement.
d.
The Township may condition the issuance of an SWF permit for small
wireless facilities, smart poles, utility poles, and/or related infrastructure
upon aesthetic requirements, which may be adopted by ordinance or
resolution of the Township Committee, provided as follows:
1.
The aesthetic requirements shall be technically feasible and reasonably
directed at avoiding or remedying unsightly or out-of-character deployments,
are no more burdensome than those applied to functionally equivalent
infrastructure deployments, and are published in advance.
2.
Any design or concealment measures are not considered a part of the
small wireless facility for purposes of the size parameters in the
definition of small wireless facility.
3.
The Township may only issue a denial for not complying with an aesthetic
requirement only if the Township finds that the denial does not prohibit
or has the effect of prohibiting the provision of wireless service.
[Added 4-27-2021 by Ord.
No. 2021-11]
a.
Application filing. An application for an SWF permit to place one
or more small wireless facility(ies) within a right-of-way shall be
made on forms which shall be available from the office of the Township
Clerk. The application, along with the required application fee and
the required escrow fee, shall be filed with the Township Clerk. Immediately
upon receipt of an application, the Township Clerk shall provide copies
of the application and all supporting documents that were submitted
by the applicant with the application, to the Township Engineer, the
Construction Official and the Township Attorney.
b.
Application form. The SWF permit application shall be made by an
applicant, such as a provider of personal wireless services, or its
duly authorized representative, as noted in a notarized statement
from the provider of personal wireless services on whose behalf the
representative is acting, and shall contain the following:
1.
The applicant's name, address, telephone number and e-mail address;
2.
The names, addresses, telephone numbers, and email addresses of all
consultants, if any, acting on behalf of the applicant with respect
to the filing of the application;
3.
A general description of the proposed small wireless facility, existing
structure, and new structure work to be performed. The scope and detail
of such description shall be appropriate to the nature and character
of the work to be performed, with particular emphasis on those matters,
including, but not limited to, subservice utilities likely to be affected
or impacted by the work proposed along with a description of such
other governmental permits or approvals as may be required by applicable
law with respect to the proposed installation(s) and a description
of such other permits or approvals for which the applicant has applied;
4.
Authorization for any consultant acting on behalf of the applicant
to speak with the Township, or a designee of the Township, on the
area of consultation for the applicant even if the applicant cannot
be available;
5.
Verification from an appropriate professional that the small wireless
facility shall comply with all applicable federal, state and local
laws, administrative regulations and codes;
6.
The applicant shall certify that they shall market the availability
of approved facilities to all major wireless carriers in the marketplace.
The applicant shall further certify that they will encourage, manage,
and coordinate the location and placement of any interested carrier's
equipment on their structure;
c.
An applicant seeking to deploy a network of small wireless facilities,
all of which are to be located in rights-of-way, may file a batched
application for up to 25 small wireless facilities and receive a single
permit for said small wireless facilities.
d.
The Township shall review the application for a small wireless facility
permit in light of its conformity with the provisions of this article,
and shall approve a permit on nondiscriminatory terms and conditions
subject to the following requirements:
1.
Within 10 days of receiving an application, the Township Clerk shall
determine and notify the applicant:
(a)
Whether the application is complete;
(b)
If the application is incomplete, what specific information
is missing; and
(c)
Whether the deployment of the small wireless facilities, as
proposed, requires the applicant to apply for other permits, such
as a street opening permit or construction permit, for which the applicant
has not yet applied.
2.
No small wireless facility permit application shall be deemed complete
until the applicant has applied for all other permits and approvals
required by all other laws and regulations that are applicable to
the applicant's proposed small wireless facility deployment.
e.
Timeframes.
1.
The Township shall make its final decision to approve or deny the
application within the following timeframes:
(a)
Sixty days from the submission of a complete application to
install a small wireless facility upon one or more existing structures.
(b)
Ninety days from the submission of a complete application to
install a small wireless facility upon one or more new structures.
(c)
Ninety days from the submission of a complete batched application
to install small wireless facilities upon both existing and new structures.
2.
The timeframes described above shall be tolled during any period
in which the applicant is notified that it has not submitted a complete
application.
3.
The timeframes described above by which an application shall be either
approved or denied may be extended by mutual consent of the applicant
and Township. Such consent on behalf of the Township may be exercised
by the Township Administrator in his/her reasonable discretion.
f.
The Township may issue a final decision approving an application
conditioned upon the applicant's satisfaction of certain requirements
in order to comply with the provisions of this article.
g.
The Township shall notify the applicant, in writing, of the final
decision, and if the application is denied, the denial shall specify
the basis for denial, including any relevant provisions of law resulting
in such determination.
h.
The applicant may cure deficiencies identified by the Township in
its denial within 30 days of the denial, without paying an additional
application fee, and the Township shall approve or deny the revised
application within 30 days of receipt of same.
i.
If the Township fails to act upon an application within the timeframes
prescribed by this section, the applicant may provide written notice
to the Township that the application review and decision period has
lapsed. Upon receipt of such notice, Township Committee, by resolution
adopted no later than its second regularly scheduled public meeting
next following receipt of the notice, shall either deny the application
or direct that the permit shall be approved and issued. Nothing in
this subsection is intended in any way to impact any other right or
remedy that may be available to the applicant under applicable federal
or state law if the Township fails to act upon an application within
the timeframes prescribed by this section.
j.
Upon approval of an SWF permit authorizing placement of a small wireless
facility in a public right-of-way, the SWF permit shall not be issued
by the Township Clerk to the applicant unless and until:
1.
All SWF permit application fees and escrow fees, as established herein,
have been paid.
2.
All other governmental permits or other governmental approvals that are required for the deployment(s) proposed by the applicant's permit application by any other applicable federal, state or municipal law have been issued have been fulfilled, including, but not limited to, those required under the New Jersey Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq., and the administrative regulations adopted thereunder, Holmdel Township Ordinance Section 17-1 titled "Excavations in Streets," and Holmdel Township Ordinance Sections 4A-51 to 4A-69, which are hereby made applicable to improvements authorized by an SWF permit. The applicant shall supply copies of such other permits or approvals to the Township Clerk for inclusion with the applicant's application documents.
3.
The applicant has entered into a right-of-way use agreement, which
has been approved by Township Attorney as to legal form and adopted
by resolution of Township Committee.
[Added 4-27-2021 by Ord.
No. 2021-11]
a.
No SWF permit issued under this article shall be valid for a period
longer than 12 months, unless construction has actually begun and
continuously and diligently is pursued to completion. Upon written
request from the applicant, the Township Administrator, upon consultation
with the Construction Official, may extend the permit for a period
of up to 12 months so long as construction has begun at the time that
the applicant's request for an extension is made.
[Added 4-27-2021 by Ord.
No. 2021-11]
a.
A small wireless facility permit shall not be required for:
1.
Routine maintenance of a small wireless facility;
2.
The replacement of a small wireless facility with another small wireless
facility that is substantially similar or smaller in size, weight
and height to the small wireless facility that is being replaced,
except a replacement that includes replacement of the structure to
which the small wireless facility is attached.
b.
Notwithstanding the foregoing, at a location where the Township and/or
another provider has co-located equipment or facilities, any routine
maintenance or replacement that is done shall not occur until written
authorization to proceed from the Township or entity with co-located
equipment or facilities, as the case may be, which consent shall not
unreasonably be withheld.
[Added 4-27-2021 by Ord.
No. 2021-11]
a.
All applications for approval and issuance of a SWF permit pursuant
to this article shall be accompanied by a fee as follows:
1.
For applications that do not include the installation of any new
structures within a right-of-way, the application fee shall be $500
for up to five small wireless facilities, with an additional $100
for each small wireless facility beyond five in quantity.
2.
For applications that include the installation of a smart pole or
similar structure within a right-of-way, the application fee shall
be $1,000 for each.
b.
In addition to the application fee, all applications for approval
and issuance of a SWF permit shall be accompanied by an escrow fee
of $5,000. Any applications requiring a street opening shall additionally
be subject to such applicable escrow established in ordinance.
c.
The escrow account deposits provided in Subsection b are required to pay for the costs of professional services, including engineering, planning, legal and other third-party professional consulting expenses connected with the review of submitted materials, including any traffic engineering review or other special analyses related to the Township's review of the materials submitted by the applicant and the preparation of any reports or any necessary legal agreement regarding rights-of-way use. An applicant is required to reimburse the Township for all fees, costs and expenses of third-party professionals and consultants incurred and paid by the Township for the review process of a small wireless facility permit application, such as, but not limited to:
1.
Professional fees for reviews by third-party professionals or consultants
of applications, plans and accompanying documents;
2.
Issuance of reports or analyses by third-party professionals or consultants
to the Township setting forth recommendations resulting from the review
of any documents submitted by the applicant;
3.
Charges for any telephone conference(s) or meeting(s), including
travel expenses, requested or initiated by the applicant, the applicant's
attorney or any of the applicant's experts or representatives;
4.
Review of additional documents submitted by the applicant and issuance
of reports or analyses relating thereto;
5.
Review or preparation of right-of-way use agreements, easements,
deeds, right-of-way municipal consent ordinances or resolutions and
any and all other like or similar documents; and
6.
Preparation for and attendance at all meetings by third-party professionals
or consultants serving the Township, such as the Township Attorney,
Township Engineer and Township Planner or other experts as required.
d.
The escrow account deposits provided in Subsection b shall be placed in a separate account by the Township's Chief Financial Officer at the request of the Township Clerk, and an accounting shall be kept of each applicant's deposit. Thereafter:
1.
All third-party professional or consultant fees, costs, expenses
and charges shall be paid from the escrow account and charged to the
applicant;
2.
Upon either final denial of a small wireless facility permit application
or upon issuance of a small wireless facility permit, any monies not
expended for third-party professional or consulting services shall
be returned to the applicant within 90 days upon written request by
the applicant and as authorized by the Township Committee;
3.
If at any time during the application review process 75% of the money
originally posted shall have been expended, the applicant shall be
required to replenish the escrow deposit to 100% of the amount originally
deposited by the applicant;
4.
No small wireless facility permit application shall be considered
complete until such time as the required escrow fee has been posted
to guarantee payment of third-party professional or consultant fees,
costs, expenses and charges;
5.
All payments charged to the escrow deposit shall be pursuant to vouchers
from the third-party professionals or consultants stating the hours
spent, the hourly rate, and the fees, costs, expenses and charges
incurred;
6.
Third-party professionals and consultants submitting charges pursuant
to this section shall be permitted to charge for such services at
the same rates as they would charge their private clients for like
or similar work, provided that:
(a)
Professional fees are billed at rates that do not exceed such
professional fees as are customarily charged by other like professionals
and consultants performing similar work within the Township of Holmdel;
and
(b)
Out-of-pocket costs, expenses and charges are billed on a dollar-for-dollar
basis with no markup being permitted;
7.
The Township shall render a written final accounting to the applicant
on the uses to which the escrow deposit was put. The written final
accounting shall include copies of all vouchers that were submitted
by third-party professionals and consultants and paid by the Township.
[Added 4-27-2021 by Ord.
No. 2021-11]
An applicant whose SWF permit includes the installation of any
new smart pole structure shall provide the Township with access to
any of the technological features that are a component of the new
smart pole structure, such as, for example, public access Wi-Fi, 911
call service or security cameras, before the applicant offers such
access to any other person or entity. Should the Township decide to
utilize any such technological features, then the Township, on an
annual basis, shall reimburse the applicant or the subsequent owner
of the structure, the costs, on a dollar-for-dollar basis, of providing
the Township with such access. Such costs shall be limited to the
costs of providing electricity to the components used by the Township
and the costs of any repairs required to be made to the components
used by the Township, unless the repair costs are necessitated by
the acts of the applicant or subsequent owner of the structure, without
regard to whether such acts are negligent or intentional.
[Added 4-27-2021 by Ord.
No. 2021-11]
[Added 4-27-2021 by Ord.
No. 2021-11]
Nothing contained in this article shall be construed as limiting
any judicial remedies that the Township may have, at law or in equity,
for enforcement of this article.
