[HISTORY: Adopted by the City Council of the City of Paterson
as indicated in article histories. Amendments noted where applicable.]
[Adopted 4-26-2022 by Ord. No. 22-040]
A.
All definitions of words, terms, and phrases that are set forth in
the Communications Act of 1934, P.L. 73-416,[1] 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 a part hereof.
[1]
Editor's Note: See 47 U.S.C. § 151 et seq.
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 a part 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
EXISTING RIGHT-OF-WAY INSTALLATION APPLICATION
EXISTING SMALL WIRELESS FACILITY
INSTALLATION
MUNICIPAL RIGHT(S)-OF-WAY, OR RIGHT(S)-OF-WAY, OR ROW
PERSONAL WIRELESS SERVICES
POLE
RIGHT-OF-WAY PERMIT
RIGHT-OF-WAY USE AGREEMENT
SMALL WIRELESS FACILITY
SMART POLE
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:
The person or entity seeking to place a small wireless facility,
cabinet or pole within the Municipal right-of-way that submits an
application, and the agents, employees, and contractors of such person
or entity.
Either a new right-of-way installation application or an
existing right-of-way installation application, submitted by an applicant
to the City of Paterson for purposes of procuring a right-of-way permit.
A formal written request in compliance with the requirements
as established by the Township for right-of-way permit to construct
or install a small wireless facility on an existing facility within
a municipal right-of-way submitted by an applicant to the Township
Engineer in accordance with this chapter.
An existing small wireless facility that is in lawful existence
within the municipal right-of-way.
The pole, cabinet and/or small wireless facility installed
within the municipal right-of-way in accordance with a right-of-way
permit.
The surface of, and the space above or below, any public
street, road, lane, path, public way or place, sidewalk, alley, boulevard,
parkway, drive, and the like, held by the Township as an easement
or in fee simple ownership, or any other area that is determined by
the City of Paterson to be a right-of-way in which the City of Paterson
may allow the installation of small wireless facilities, cabinets
and poles. This term shall also include county rights-of-way where
the County requires the approval of the City of Paterson pursuant
to N.J.S.A. 27:16-6 for the use of same.
As defined in 47 U.S.C. § 332(c)(7)(C), as supplemented
and/or as amended.
A long, slender, piece of wood, metal, fiberglass composite,
or other materials, including, but not limited to, decorative streetlights,
nondecorative streetlights and traffic signal structures.
The permit issued by the Township following approval from
the Township which sets forth that the applicant is in compliance
with the requirements of this chapter.
An agreement that sets forth the terms and conditions for
use of the municipal right-of-way.
As defined in the Code of Federal Regulations at 47 CFR § 1.6002(1),
as supplemented and/or as amended. Small wireless facility means a
wireless facility that meets both of the following qualifications:
(i) each antenna is located inside an enclosure of no more than six
cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements could fit within
an imaginary enclosure of no more than six cubic feet; and (ii) all
other wireless equipment attached directly to a utility pole associated
with the facility is cumulatively no more than 25 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, ground-based enclosures,
grounding equipment, power transfer switch, cut-off switch, and vertical
cable runs for the connection of power and other services.
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, sensors, digital signage, 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 latches, external hinges, nor external cabling.
The pole should be made of an inherently rust-resistant material (i.e.,
aluminum alloys or stainless steel).
A wooden or metal pole that is used by public utilities to
support electrical wires, telephone wires, coaxial cables, fiber optic
cables, 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.
A.
No person shall, operate, construct, install, place, or replace any
type of small wireless facility in any right-of-way without first
filing a small wireless facility siting permit application, in the
form specified herein and in accordance with the procedures specified
herein, with the City of Paterson Clerk and obtaining a siting permit
therefore, except as otherwise may be provided in this article.
B.
Upon approval of a siting permit application, the siting permit authorizing
the placement of a small wireless facility in a public right-of-way
shall not be issued by the City of Paterson Clerk to any applicant
unless:
(1)
All siting permit application fees and escrow fees, as established
herein, have been paid; and
(2)
All other governmental permits or other governmental approvals that
are required for the deployment(s) proposed by the applicant's
siting permit application under the New Jersey Uniform Construction
Code Act, N.J.S.A. 52:27D-1 19, et. seq., and the administrative regulations
adopted thereunder, __________, of the Code of the City of Paterson,
and by any other applicable federal, state or municipal law have been
issued by the appropriate issuing authority therefore to the applicant
and the applicant has supplied copies of such other permits or approvals
to the City of Paterson Clerk for inclusion with the applicant's
application documents; and
(3)
The applicant has entered into a "Right-of-Way Use Agreement" the
approved form of which is set forth in Appendix A to this article,[1] with the City of Paterson. The approved form of the "Right-of-Way
Use Agreement" may from time to time be revised, supplemented, or
otherwise amended or replaced. All such revisions, supplements, amendments,
or replacements shall be approved by the resolution of City of Paterson
Council.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
(4)
The City of Paterson Clerk shall maintain on file the currently approved
right-of-way Use Agreement version and shall provide a copy to all
siting permit applicants. Minor deviations to the terms and conditions
that are set forth in the approved form of right-of-way Use Agreement
may be approved by City of Paterson Council at the time that it grants
consent to use a right-of-way to a siting permit applicant.
C.
No siting permit authorizing placement of a small wireless facility
in a public right-of-way shall be issued to any applicant unless City
of Paterson Council, in the manner prescribed by applicable laws of
the State of New Jersey, has granted to the siting permit applicant
its consent to use public rights-of-way within the City of Paterson.
D.
No siting of a small wireless facility shall be permitted within
200 feet of another small wireless facility unless it can be established
by clear and convincing evidence that co-location on an existing or
previously approved small wireless facility is not feasible. Any claims
of carriers of technical incompatibility or inability to collocate
need to be proven by the carrier, not disproven by the municipality.
Responsibility for judging proof of said claims lies solely with the
municipality and/or or its chosen representative(s).
A.
No application for a small wireless facility siting permit shall be approved if the application proposes the deployment of a small wireless facility upon an existing structure in a right-of-way unless the structure is one of the types of smart poles that are set forth in § 477-1, Definitions, to this article and such smart pole specifically is designed to accommodate the reasonable and customary equipment necessary for a small wireless facility installation which will accommodate at least three carriers per small wireless facility deployment. Any exception to this requirement must be accompanied by clear and convincing evidence that co-location on an existing or previously approved small wireless facility is not feasible. Any claims of carriers of technical incompatibility or inability to co-locate need to be proven by the carrier, not disproven by the municipality. Responsibility for judging proof of said claims lies solely with the municipality and/or or its chosen representative(s).
B.
No small wireless facility shall be installed upon any new structure within any right-of-way unless the new structure is one of the pre-approved types of smart poles that are identified in § 477-1, Definitions, to this article. A replacement pole is a new structure.
C.
No application for a small wireless facility siting permit shall
be approved if the application proposes the deployment of a small
wireless facility in an area other than those specific locations set
forth within the City's Wireless Siting Plan, which can be found
on file with the office of the City Clerk.
D.
All small wireless facilities must be placed within a 25 feet radius
of those specific locations set forth on the City's Wireless
Siting Plan. No more than one smart pole shall be permitted per intersection
or block if the Siting Plan calls for the deployment of a small wireless
facility at any location other than an intersection unless otherwise
specified within the Wireless Siting Plan. No smart poles shall be
located within 200 feet of another.
A.
Pre-application meeting.
(1)
Prior to making a formal application to the Township for use of the
Municipal right-of-way, all applicants are advised to meet with the
Township Engineer to review the scope of the applicant's proposal
which may include an on-site review of proposed poles with the City
Engineer.
B.
Application filing.
(1)
An application for a siting permit to place one or more small wireless
facility within a right-of-way shall be made on forms which shall
be available from the office of the City of Paterson Clerk.
(2)
The application, along with the required application fee and the
required escrow fee, shall be filed with the City of Paterson Clerk.
Immediately upon receipt of an application, the City of Paterson Clerk
shall provide copies of the application and all supporting documents
that were submitted by the applicant with the application, to the
City of Paterson Engineer, the Construction Official, and the City
of Paterson Solicitor.
C.
Application form. The small wireless facility siting permit application
shall be made by the applicant, and shall contain the following:
(1)
The applicant's name, address, telephone number, and email 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 City of Paterson, or a designee of the City of Paterson,
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
at reasonable rates. 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. Likewise
the applicant shall certify that they will market the availability
of approved facilities to Smart City solution providers as approved
time to time by the Paterson City Council. Should the City of Paterson
designate an entity to manage and market the availability of approved
facilities, the applicant shall certify that they will coordinate
marketing through that entity.
D.
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
siting permit for multiple small wireless facilities.
A.
The City of Paterson shall review the application for a small wireless
facility siting permit in light of its conformity with the provisions
of this article and shall approve a siting permit on nondiscriminatory
terms and conditions subject to the following requirements:
(1)
Within 10 days of receiving an application, the City of Paterson
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. No small wireless facility siting 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.
(2)
Other required permits.
(a)
Prior to commencing any work authorized under a right-of-way
permit pursuant to this chapter, the applicant must also obtain all
other permits and licenses that are required by the City for carrying
out the work, including, but not limited to:
[1]
Road opening permits;
[2]
Construction permits;
[3]
Excavation permits;
[4]
Obstruction permits;
[5]
Traffic control permits; and
[6]
Any other permits required under the laws and statutes of the
State of New Jersey, the County code/ordinances of the County, and/or
City Code/Ordinances of the City, including, but not limited to, the
Uniform Construction Code.
(b)
Permits to be displayed. A copy of all permits and licenses
required by the city must be available for inspection at the work
site at all times during the construction, placement, replacement,
or installation of small wireless facility, cabinet or pole. Failure
to display copies of all permits required under this chapter shall
be deemed a violation.
B.
Time frames.
(1)
The City of Paterson shall make its final decision to approve or
deny the application within the following time frames:
(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 time frames described above by which an application shall be
either approved or denied may be extended by mutual consent of the
applicant and City of Paterson. Such consent shall be set forth on
a form for such purposes which shall be available from the Office
of the City of Paterson Clerk. Such consent on behalf of the City
of Paterson shall be exercised by the Mayor in his/her reasonable
discretion.
C.
The City of Paterson Clerk shall notify the applicant, in writing,
of the final decision, and if the application is denied specify the
basis for denial; and Cite such specific provisions, as may be recommended
by the City of Paterson Solicitor, from federal, state, or local laws,
administrative regulations or codes as to why the application was
denied.
D.
Notwithstanding an initial denial, the applicant may cure any deficiencies
identified by the City of Paterson within 30 days of the denial without
paying an additional application fee, provided the City of Paterson
Clerk shall approve or deny the revised application within 30 days
of receipt of the amended application which shall be limited to the
deficiencies specified in the original notice of denial.
E.
If the City of Paterson fails to act upon an application within the
time frames prescribed by this section, the applicant may provide
written notice to the City of Paterson that the application review
and decision period has lapsed. Upon receipt of such notice, City
of Paterson Council, 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 siting 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 City
of Paterson fails to act upon an application within the time frames
prescribed by this section.
F.
A siting permit from the City of Paterson authorizes an applicant
to undertake only certain activities in accordance with this article.
No approval or consent granted, or siting 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 City
of Paterson for the delivery of telecommunications services or for
any other purpose.
No siting 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 Mayor, upon consultation with the
Construction Official, may extend the siting 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.
A small wireless facility siting permit shall not be required
for:
A.
Routine maintenance of a small wireless facility.
B.
Provided, however, that on a location where the City of Paterson
and/or another provider has placed equipment or facilities, any routine
maintenance or replacement that is done shall not occur until written
authorization from the City of Paterson and/or the other provider,
as the case may be, to proceed is provided to the City of Paterson,
which authorization to proceed shall not unreasonably be withheld
by the City of Paterson and/or the other provider.
C.
Provided further that if the replacement of a small wireless facility
with another small wireless facility includes replacement of the structure
to which the small wireless facility is attached then an application
for a siting permit shall be required.
A.
Application fees. All applications for approval and issuance of a
small wireless facility siting 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.
(2)
For applications that include the installation of a new structure
within a right-of-way, the application fee shall be $1,000 for up
to five small wireless facilities with an additional $100 for each
small wireless facility beyond five.
B.
Other fees. No pole attachment fees will be assessed by the City
unless and until an applicant applies for pole attachment to a City-owned
pole.
C.
Annual rate. $270 Annual ROW maintenance rate per pole per wireless
facility, starting on the anniversary of the permit.
D.
Performance bond. In addition to the foregoing fees and deposits,
the applicant shall provide a performance bond from a duly authorized
surety company authorized to do business in the State of New Jersey,
and acceptable to the City, that will cause the poles, associated
equipment, cabinets, small wireless facilities, and all other related
improvements to the municipal right-of-way to be removed, at no cost
to the City, when the same are no longer operative. The amount of
the performance bond shall not be less than 120% of the cost (as determined
by the City Engineer at the time of the application) of such demolition,
removal, and restoration of the site to a state required under applicable
City Code/ordinances. Said performance bond shall be held in the custody
of the City Clerk.
E.
Corrections. The City or its duly authorized agents may audit the
itemization of small wireless facilities and payment calculations
provided by an owner to verify their accuracy. If the City determines
that the owner has paid less than the amount due, the City will bill
the owner for the additional amount due, plus a 10% late payment charge.
At the City's request, the owner will provide all records necessary
to verify the owner's calculations to the City or its agents.
F.
Annual reporting requirements. Each owner of a small wireless facility,
pole, or cabinet within a Municipal right-of-way must file an annual
report with the Township Engineer.
A.
In addition to the application fee, all applications for approval
and issuance of a small wireless facility siting permit shall be accompanied
by an escrow fee as follows:
(1)
For applications whose proposed small wireless facility deployment(s)
will not require a street opening permit pursuant to Chapter 382,
Article V of the Code of the City of Paterson: $5,000.
(2)
For applications whose proposed small wireless facility deployment(s)
will require a street opening permit of the Code of the City of Paterson:
$7,500.
B.
The escrow account deposits 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 City of Paterson'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 City of Paterson for
all fees, costs, and expenses of third-party professionals and consultants
incurred and paid by the City of Paterson for the review process of
a small wireless facility siting 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 City of Paterson 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 City of Paterson, such as the City of Paterson
Attorney, City of Paterson Engineer, and City of Paterson Planner
or other experts as required.
C.
The escrow account deposits shall be placed in a separate account
by the City of Paterson's Chief Financial Officer at the request
of the City of Paterson 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;
(a)
Third-party professional or consultant fees shall not be disbursed
from the escrow if they are for a service performed in the context
of an identical paid service between applicant and same third-party
who may otherwise be entitled to said fees.
(2)
Upon either final denial of a small wireless facility siting permit
application or upon issuance of a small wireless facility siting permit,
any moneys 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 City of Paterson
Council;
(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 siting 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 County; and
(b)
Out-of-pocket costs, expenses, and charges are billed on a dollar-for-dollar
basis with no mark-up being permitted;
(7)
The City of Paterson 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 City
of Paterson.
A.
An applicant whose siting permit includes the installation of any new Smart pole structure of any of the types that are defined in § 477-1, Definitions, to this article shall provide the City of Paterson 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, sensors, digital signage or security cameras, before the applicant offers such access to any other person or entity.
B.
If the City of Paterson decides to utilize any such technological features in outlined in Subsection A, then the City of Paterson, 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 City of Paterson with such access. Such costs shall be limited to the costs of providing electricity to the components used by the City of Paterson and the costs of any repairs required to be made to the components used by the City of Paterson, 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.
A.
Small wireless facility, pole or cabinet within a municipal right-of-way
must not:
(1)
Obstruct, impede, or hinder vehicular, pedestrian, or bicycle travel
or public safety within a municipal right-of-way, except for authorized
temporary lane or sidewalk closures;
(2)
Obstruct the legal use of the Municipal right-of-way by utility providers
and other authorized municipal right-of-way users;
(3)
Inhibit any sight triangles;
(4)
Obstruct, block, or interfere with traffic signal systems;
(5)
Result is a violation of the federal Americans with Disabilities
Act of 1990 (42 U.S.C. § 12101); or
(6)
Violate other municipal right-of-way management provisions adopted
by.
All ordinances or parts of ordinances inconsistent with this
article, to the extent of such inconsistencies only, be and the same
hereby are repealed.
This article shall take effect immediately upon final passage
and publication as provided by law.
