This article is titled the "Telecommunications Facilities in
Public Right-of-Way," and amends all applicable provisions of the
Revised General Ordinances of the Borough of Edgewater, and any existing
local laws, rules, orders, resolutions and ordinances relating to
the subject matter of this article.
As used in this article, the following terms shall have the
meanings indicated:
ADMINISTRATIVE REVIEW
Ministerial review of an application by the Borough relating
to the review and issuance of a permit, including review by the designee,
a wireless consultant with knowledge beyond the expertise of Borough
personnel, as well as the Construction Official, Zoning Officer, Director
of Public Works, engineer, or other Borough staff or designees to
determine whether the issuance of a permit is in conformity with the
applicable provisions of this article. Administrative permit issuance
is nondiscretionary and based on whether an application is in conformity
with the provisions of this article, as well as any other applicable
local, state and federal laws and regulations governing small cell
deployment. This process does not involve the exercise of discretion.
ANTENNA
Communications equipment that transmits and/or receives over-the-air
electromagnetic signals used in the provision of wireless services.
This definition does not apply to broadcast antennas, antennas designed
for amateur radio use, or satellite dishes for residential or household
purposes.
APPLICABLE CODES
Uniform building, fire, safety, electrical, plumbing, or
mechanical codes adopted by a recognized national code organization
to the extent such codes have been adopted by the Borough or otherwise
are applicable in the jurisdiction.
APPLICANT
A person or entity who submits an application under this
article.
APPLICATION
A written request submitted by an applicant to the Borough
for a permit:
A.
To locate or co-locate, or to modify, a communications facility
underground or on any existing support structure, pole, or tower;
or
B.
To construct, modify or replace a new support structure, pole
or tower or any other structure on which a communications facility
will be co-located.
BOROUGH
The Borough of Edgewater, or any agency, department, district,
subdivision or any instrumentality thereof, including but not limited
to public utility districts or municipal electric utilities. The term
shall not include courts of the state having jurisdiction over the
Borough or any entities that do not have zoning or permitting authority
or jurisdiction. The Borough may hereinafter be referred to as the
"Borough," "the Borough of Edgewater," or "Edgewater."
BOROUGH POLE
A pole owned, managed or operated by or on behalf of the
Borough.
CO-LOCATE
To install, mount, maintain, modify, operate and/or replace
a communications facility on an existing support structure, pole,
or tower or any other structure capable of supporting such communications
facility. "Co-location" has a corresponding meaning. The term does
not include the installation of a new pole, tower or support structure
in the public right-of-way.
COMMUNICATIONS FACILITY
A.
Collectively, the equipment at a fixed location or locations
that enables communication between user equipment and a communications
network, including:
(1)
Radio transceivers, antennas, coaxial, fiber-optic or other
cabling, power supply (including backup battery), and comparable equipment,
regardless of technological configuration; and
(2)
All other equipment associated with any of the foregoing.
B.
A communications facility does not include the pole, tower or
support structure to which the equipment is attached. A wireless facility
is an example of a communications facility.
COMMUNICATIONS SERVICE PROVIDER
A cable operator, as defined in 47 U.S.C. § 522(5),
a provider of information service, as defined in 47 U.S.C. § 153(24);
or a provider of telecommunications service, as defined in 47 U.S.C.
§ 153(53); or provider of fixed wireless or other wireless
services as defined in 47 U.S.C. § 332(c)(7)(C)(i). A wireless
service provider is an example of a communications service provider.
CONTRACT FOR PROFESSIONAL SERVICES
A contract through which the Borough has entered into an
arrangement with an individual, attorney consultant or firm for same
to provide professional consulting services pursuant to this article,
said contract being in conformance with New Jersey Public Contracts
Law, pay-to-play laws and other applicable laws governing such contracts
and agreements. The contract between the designee and the Borough
is an example of a contract for professional services.
DECORATIVE POLE
A Borough pole that is specially designed and placed for
aesthetic purposes.
DEPLOYABLE
A portable, self-contained wireless facility that can be
moved to a specified location or area and provide wireless services
on a temporary or emergency basis such as a "cell on wheels" or "COW,"
"cell on light truck" or "COLT," tethered balloon, tethered drone
or other unmanned device.
DESIGNEE
Hoplite Communications, LLC, appointed by the Borough and
contracted for professional services to serve as the point-of-contact
and primary consultant and specialist for the Borough for all matters
concerning this article. Hoplite contact information: office address:
Hoplite Communications, LLC, 197 Route 18, Suite 3000, East Brunswick,
NJ 08816; phone: 732-207-3912; email: Peter.lupo.hoplite@gmail.com.
DISCRETIONARY REVIEW
Review of an application by the Borough relating to the review
and issuance of a permit, that is other than an administrative review.
Discretionary review involves discretion on the part of the Borough
(subject to any applicable limits on such discretion) in determining
whether to issue a permit and may be subject to one or more public
hearings or meetings, including appearances before the Planning Board,
Zoning Board of Adjustment and referral to the Historic Preservation
Commission for commentary and recommendations. Discretionary review
may be subject to provisions of the applicable ordinances as determined
by the applicable governing authority.
FCC
The Federal Communications Commission of the United States.
FEE
A one-time, nonrecurring charge, whether a fixed amount or
cost-based amount based on time and expense.
HISTORIC PROPERTY
Any prehistoric or historic district, site, building, structure,
or object included in, or eligible for inclusion in, the National
Register maintained by the United States Secretary of the Interior
(in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic
Agreement codified at 47 CFR Part 1, Appendix C) or established pursuant
to state historic preservation law.
LAWS
Collectively, any and all federal, state, or local law, statute,
common law, code, rule, regulation, order, or ordinance.
OCCUPANT
Any occupant of the public right-of-way, including any wireless
provider, wireless infrastructure provider, utility company, or public
or private entity with a physical presence or right to maintain a
physical presence on, under or across the public right-of-way.
ORDINARY MAINTENANCE, REPAIR AND REPLACEMENT
With respect to a communications facility and/or the associated
support structure, pole or tower, inspections, testing, repair and
modifications that maintain functional capacity, aesthetic and structural
integrity; and with respect to a communications facility only, the
replacement of antennas and/or other components of the communications
facility (specifically, such as a swap out of small cell antennas
and radio equipment as required by the applicant), with antennas and/or
other components substantially similar, in color, aggregate size and
other aesthetics, to that previously permitted by the Borough (and/or
consistent with the same height and volume limits for wireless facilities
under this article), so long as the support structure, pole, or tower
will structurally support, or prior to installation will be modified
to support, the structural load. Modifications are limited by the
structural load analysis supplied by the applicant to the Borough,
and by the volume limits in the design standards.
PERMIT or SMALL CELL PERMIT
A written authorization (in electronic or hard copy format)
required by the Borough to initiate, continue, or complete the installation,
upgrade or modification of a communications facility, or an associated
support structure, pole, or tower.
PERSON
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including the
Borough.
POLE
A pole, such as a utility, lighting, traffic, or similar
pole, made of wood, concrete, metal or other material, located or
to be located within the public right-of-way or utility easement.
The term includes the vertical support structure for traffic lights
but does not include a horizontal structure to which signal lights
or other traffic control devices are attached unless the Borough grants
a waiver for such pole. The term does not include electric transmission
poles or structures. A pole does not include a tower or support structure.
PROVIDER
A communications service provider or a wireless provider.
PUBLIC RIGHT-OF-WAY, PUBLIC ROW or MUNICIPAL ROW
The area on, below, or above property that has been designated
for use as or is used for a public roadway, highway, street, sidewalk,
alley or similar purpose, but not including a federal interstate highway
or other area not within the legal jurisdiction, or within the legal
ownership or control of the municipality.
REPLACE or REPLACEMENT
In connection with an existing pole, support structure or
tower, or communications facility, as the case may be, to replace
(or the replacement of) same with a new structure, similar in design,
size and scale to the existing structure and in conformance with current
Borough building code, zoning provisions and other applicable regulations,
in order to address limitations of, or change requirements applicable
to, the existing structure to structurally support co-location of
a communications facility. In connection with replacement of a pole
or tower to support co-location of a wireless facility, similarity
in size and scale shall be evaluated consistent with 47 CFR 1.6100
(b)(7).
SMALL WIRELESS FACILITY
A wireless facility that meets both of the following qualifications:
each wireless provider's antenna (including, without limitation,
any strand-mounted antenna) could fit within an enclosure of no more
than three cubic feet in volume; and all other wireless equipment
associated with the facility is cumulatively no more than 28 cubic
feet in volume. The following types of associated, ancillary equipment
are not included in the calculation of equipment volume: electric
meter, concealment elements, telecommunications demarcation box, grounding
equipment, power transfer switch, cutoff switch, and vertical cable
runs for connection of power and other services. The following additional
parameters apply to small wireless facilities: total height of small
wireless facility and supporting structure is less than 50 feet, or
the small wireless facility is mounted on structures no more than
10% taller than adjacent structures, or the small wireless facility
does not extend the existing structure to a height of greater than
50 feet or by more than 10% of the original height, whichever is greater.
STATE
The State of New Jersey.
SUPPORT STRUCTURE
A building, a billboard, a water tank or any other structure
to which a communications facility is or may be attached. "Support
structure" does not include a pole or a tower.
TOWER
Any structure built for the sole or primary purpose of supporting
a wireless facility, such as a self-supporting tower, a monopole,
a lattice tower or a guyed tower. "Tower" also includes a structure
designed to conceal from the general public the wireless facility.
A tower does not include a pole or a support structure.
UTILITY EASEMENT
The area on, below, or above privately owned property that
has been designated for use as or is used for a specific utility purpose
(such as for electric, cable or other utility purpose), and is evidenced
by a recorded instrument in the public land records pursuant to a
recorded plat, easement or right-of-way or is otherwise a legally
enforceable easement, and does not include any portion of a public
right-of-way.
WIRELESS FACILITY
A communications facility installed and/or operated by a
wireless provider. The term does not include the support structure,
tower or pole on, under, or within which the equipment is located
or co-located; or coaxial, fiber-optic or other cabling that is between
communications facilities or poles or that is otherwise not immediately
adjacent to or directly associated with a particular antenna. A small
wireless facility is one example of a wireless facility.
WIRELESS INFRASTRUCTURE PROVIDER
Any person, including a person authorized to provide telecommunications
service in the state, that builds or installs and/or operates wireless
facilities or poles, towers or support structures on which wireless
facilities are or are intended to be used for co-location, but that
is not a wireless services provider.
WIRELESS PROVIDER
A wireless infrastructure provider or a wireless services
provider.
WIRELESS SERVICES
Any wireless services including, without limitation, personal
wireless services as that term is defined in 47 U.S.C. § 332(c)(7)(C)(i).
Notwithstanding anything to the contrary in this article, the
Borough may request that applicant install a small wireless facility
on a new decorative pole, or replace an existing pole with a decorative
pole, or replace an existing decorative pole with a new decorative
pole that is in keeping with the aesthetics of the existing decorative
pole or the surrounding streetscape only upon satisfaction of the
following additional requirements:
A. Issuance of a permit under §
240-195 above.
B. The new decorative pole, small wireless facilities attachment and/or
the replacement decorative pole is in keeping with the aesthetics
of the decorative pole and surrounding streetscape in the judgement
of the Borough.
An applicant seeking to construct, modify or replace a network
of communications facilities may, at the applicant's discretion
and subject to the Borough's approval, batch application requirements
and file a consolidated application and receive multiple permits or
a single small cell permit for multiple communications facilities.
The Borough's denial of any site or sites within a consolidated
application shall not affect other sites submitted in the same application.
The Borough shall grant a permit(s) for any and all sites in a consolidated
application that it does not otherwise deny, subject to the requirements
of this article.
All aboveground communications facilities in the public ROW
requiring administrative review shall conform to the following nondiscriminatory
design guidelines:
A. Siting and design requirements.
(1)
Pole siting standards. New poles for use as support structures
for small wireless facilities shall conform to the following siting
standards:
(a)
Height. No proposed pole shall be taller than 50 feet or 110%
of the height of poles in the surrounding streetscape, whichever is
higher. This maximum height includes the pole and any associated small
wireless facility or antenna.
(b)
Location, safety and aesthetics. No proposed pole shall be erected
in the right-of-way unless it:
[1]
Is approved pursuant to the provisions of this article;
[2]
Replaces an existing pole; or
[3]
Does not inhibit any existing sight triangles or sight distances;
and
[4]
Allows adequate room for the public to pass and repass across,
along and through the right-of-way;
[5]
Is finished and/or painted and/or otherwise camouflaged, in
conformance with best available stealth technology methods, so as
to blend in compatibly with its background and so as to minimize its
visual impact on surrounding properties; and
[6]
Is compliant with Chapter
380, Streets and Sidewalks, of the Revised General Ordinances, as well as any applicable local and state laws and regulations pertaining to the installation of utility pole structures in the right-of-way, including promulgated by the Board of Public Utilities requiring approval of proposed locations prior to installation.
(c)
Fewest poles possible. Applicant shall minimize the number of
new proposed poles in the right-of-way to the fewest possible to meet
its coverage and capacity requirements of its client. In addition,
to the maximum extent possible while remaining compliant with engineering
and structural requirements, applicant shall make any proposed pole
available to the maximum number of additional wireless providers.
(2)
Ground-level cabinet siting standards. Ground-level cabinets
shall conform to the following siting standards:
(a)
Ground-level cabinets are prohibited in the public right-of-way
in residential zones and any future residential zones.
(b)
Ground-level cabinets are permitted in nonresidential zones,
provided that such ground-level cabinet:
[1]
Is less than 28 cubic feet in volume;
[2]
Is finished and/or painted so as to blend in compatibly with
its background and so as to minimize its visual impact on surrounding
properties;
[3]
Does not inhibit any existing sight triangles or sight distance;
[4]
Allows adequate room for the public to pass and repass across,
along and through the municipal right-of-way; and
[5]
Is a minimum of 150 linear feet from any other existing or proposed
small wireless facility, excluding the small wireless facility for
which the ground-level cabinet will provide telecommunications functionality.
(c)
Fewest ground-level cabinets possible. Applicant shall minimize
the number of ground-mounted cabinets and shall affirmatively demonstrate
that any applicable pole or support structure is incapable of supporting
the proposed equipment cabinet.
(3)
Pole-mounted antenna and pole-mounted cabinet siting standards.
(a)
Standards.
[1]
Pole-mounted antennas are permitted on existing poles, provided
that each pole-mounted antenna:
[a] Does not exceed three cubic feet in volume;
[b] Is finished and/or painted and/or otherwise camouflaged,
in conformance with best available stealth technology methods, so
as to blend in compatibly with its background and so as to minimize
its visual impact on surrounding properties;
[c] Does not increase the height of the proposed or
existing pole by 10% or five feet, whichever is greater, to a maximum
permitted height of 50 feet or 110% of the height of existing poles
in the surrounding streetscape, whichever is greater;
[d] Is a minimum of 150 linear feet from any other
existing or proposed small wireless facility;
[e] Does not inhibit any sight triangles or sight distance;
and
[f] Allows adequate room for the public to pass and
repass across, along and through the public right-of-way.
[2]
Pole-mounted cabinets are permitted on existing poles in all
residential zones and nonresidential zones, provided that each pole-mounted
cabinet:
[a] Does not exceed 16 cubic feet;
[b] Is finished and/or painted and/or otherwise camouflaged,
in conformance with best available stealth technology methods, so
as to blend in compatibly with its background and so as to minimize
its visual impact on surrounding properties;
[c] Does not inhibit any sight triangles or sight distance;
and
[d] Allows adequate room for the public to pass and
repass across the public right-of-way.
(b)
Fewest small wireless facilities possible. Applicant shall minimize
the number of new proposed small wireless facilities in the right-of-way
to the fewest possible to meet its coverage and capacity requirements
of its client.
(4)
Additional provisions for small wireless facilities on existing
utility distribution poles.
(a)
Small wireless facilities, subject to administrative review,
may be placed in the public right-of-way on top of existing utility
poles in excess of the height requirements specified in the above
design standards subject to the following requirements:
[1]
Each small wireless facility and its associated supporting utility
pole shall not exceed five feet above the tallest existing pole or
utility pole within 500 feet in place as of the application date,
or shall not exceed 10 feet above same, only if required pursuant
to electrical utility pole separation requirements.
[2]
In no event shall the combined height of the small wireless
facility and its associated utility distribution pole exceed 55 feet
in height.
[3]
Any proposed height above 50 feet shall be subject to administrative
review by the Zoning Board of Adjustment and Planning Board.
[4]
Discretionary approval is required for any proposed small wireless
facility that does not meet the above standards.
In addition to compliance with the applicable provisions of
this article, prior to the start of any installation of poles, support
structures, small wireless facilities or other communications facilities
that requires excavation, applicant shall contact New Jersey One Call
at 811 at least three full business days prior to the commencement
of work.
For all installations of communications facilities and small
wireless facilities that require the installation of aboveground and
underground communications and power cabling and conduit, along the
public ROW as well as utility easements and private property, the
Borough's Department of Public Works or construction office may
request that the project developer publicly offer to coordinate with
providers who operate, or have applied for facilities in the Borough
through the Department of Public Works or other applicable department
or agency to ensure the public ROW and any planned utility easements
are adequate to accommodate the deployment of both aboveground and
underground communications facilities. Specifically, planned utility
easements should allow for an adequate number of huts, utility poles
and other structures, as well as belowground conduit, to adequately
serve current and anticipated communications facilities. Access to
easements should be provided to providers on a nondiscriminatory basis
and at a reasonable cost, or pursuant to applicable laws.
Violation of any of the provisions of this article shall be
a simple citation punishable with a civil penalty of $500 for each
violation which continues more than 10 days after written notice of
such violation is provided to the applicant. Each day, after such
notice, that a violation occurs or is permitted to exist by the applicant
constitutes a separate offense.
This article is intended to govern the installation, placement, maintenance, modification, upgrade and repair of communications facilities, including small wireless facilities, in the public right-of-way. The placement of telecommunications equipment outside of the public right-of-way shall be governed by Article
XX, Wireless Telecommunications Towers and Antennas, as well as by other applicable codes and ordinances of the Borough.
The Borough Council, or other Borough person, agency or department
with the authority to do so, may waive any provision or standard set
forth in this article where it is demonstrated that the strict enforcement
of said standard:
A. Will prohibit or have the effect of prohibiting any telecommunications
service pursuant to 47 U.S.C. § 253(a);
B. Will prohibit or have the effect of prohibiting personal wireless
service pursuant to 47 U.S.C. § 332(c)(7)(B)(i)(II);
C. Will violate any requirement set forth in the FCC Order entitled
"Accelerating Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment," WT Docket No. 17-79; "Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Investment,"
WC Docket No. 17-84; or
D. Will prohibit, or have the effect of prohibiting, the ability of
an entity to provide wireless service to any prospective customer
within the Borough.
As specified in herein, the designee shall be the initial point
of contact for the Borough for all matters concerning this article.
All ordinances or parts of ordinances inconsistent or in conflict
with this article are hereby repealed as to said inconsistencies and
conflicts.
If any section, part of any section, or clause or phrase of
this article is for any reason held to be invalid or unconstitutional,
such decision shall not affect the remaining provisions of this article.
The governing body of the Borough of Edgewater declares that it would
have passed the ordinance and each section and subsection thereof,
irrespective of the fact that any one or more of the subsections,
sentences, clauses or phrases may be declared unconstitutional or
invalid.
This article shall take effect 20 days after its adoption by
the Borough Council.