Brick Township City Zoning Code
ARTICLE XXXIA
Placement of Small Cell Facilities and Wireless Poles in the Public Right-of-Way
[Added 4-12-2022 by Ord. No. 4-22]
§ 245-278.1 Purpose.
The purpose and intent of this article is to:
Establish a local policy concerning small cell equipment and wireless poles.
Conserve the limited physical capacity of the public rights-of-way held in public trust by the Township and the County.
Assure that any and all telecommunications carriers providing telecommunication services in the Township through small cell equipment and wireless poles comply with the laws, rules and regulations of the Township.
Assure that the Township can continue to fairly and responsibly protect the public health, safety and welfare.
Enable the Township to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.
This section shall supplement "Chapter 245: Wireless Telecommunications Towers and Antennas[1]" by establishing guidelines for the placement of small cell facilities and wireless poles in the public right-of-way. This section is intended to be in addition to, and not in lieu of, any other statutes, rules and regulations applicable to small cell facilities and wireless poles. Nothing herein shall abrogate and federal, state, or local regulation applicable to small cell facilities and wireless poles including, without limitation, the provisions of Chapter 245 governing land use in the Township of Brick.
§ 245-278.2 Definitions.
As used in this article, the following terms shall have the following meanings:
An existing or proposed structure that is compatible with the neutral setting and surrounding structures and that camouflages or conceals the presence of the antennae can be used to house or mount a personal wireless telecommunication service antenna. Examples include manmade trees, clock towers, bell steeples, light poles, silos, existing utility poles, existing utility transmission towers and other similar alternative designed structures.
The cost of processing an application to place small cell equipment or wireless poles in the public right-of-way including, but not limited to, all professional fees such as engineer and attorney costs.
The person or entity seeking to place small cell equipment or wireless poles within the public right-of-way.
A wireless pole, or pole owned by an incumbent local exchange carrier, competitive local exchange carrier, electric distribution company or other company that is in lawful existence within the public right-of-way. It shall not include an antenna, monopole, or preexisting towers or and preexisting antennas, as those terms are defined in Chapter 245 herein.
Any property, both real and personal, including physical installations in the public right-of-way that is owned by the Township.
A type of 'commercial mobile radio service' (as that term is defined in 47 CFR 20.3) as listed at 47 CFR 20.9(a)(11) and as defined at 47 CFR 24.5, and provided by the use of 'personal wireless service facilities' as such phrase is defined in section 704 of the Federal Telecommunications Act of 1996, Pub. L. No. 104-104, 110 State 56 (1996), partially codified at 47 U.S.C. 332 (c)(7)(C)(ii).
A raised seal stamped survey completed by a duly licensed surveyor.
The surface of, and the space above, any public street, road, lane, path, public way or place, sidewalk, alley, boulevard, parkway, drive and the like, held by the Township or county as an easement or in fee simple ownership, or any other area that is determined by the Township or county to be a right-of-way in which the Township may allow the installation of small cell equipment and wireless poles or other telecommunications facilities.
Any of the following that are attached, mounted or installed on an existing pole or wireless pole in the public rights-of-way and used to provide personal communications services:
Wireless Facilities and transmission media, including femtocells, picocells and microcells;
Outside distributed antenna systems (ODAS);
A personal wireless service facility as defined by the Federal Telecommunications Act of 1996, as amended as of August 6, 2014; or
A wireless service facility that meets both of the following qualifications:
Each antenna is located inside an enclosure of no more than three 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 three cubic feet; and
Primary equipment enclosures are not larger than 17 cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, and cut-off switch.
A collection of interrelated small cell facilities designed to deliver wireless service.
The transmission by wire, radio, optics, or any electromagnetic system, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
Any provider of telecommunication services.
Any structure or device used for the purpose pf providing, supporting, enabling, or otherwise facilitating telecommunications, including, but not limited to small cell equipment, wireless poles as defined herein.
The offering of telecommunications to the public, regardless of the telecommunications facilities.
The Township Council of the Township of Brick.
The person appointed to be Township Communications Technician by the Township of Brick pursuant to N.J.S.A. 40A:9-140.
A column or post lawfully located in the public right-of-way used solely to support small cell equipment and/or provide personal wireless service.
The zones designated in § 245-8, Zoning districts enumerated, of the Township Code of the Township of Brick.
Any zones permitting single-family, two-family, or multifamily residences, assisted-living residences, nursing homes, and/or residential health care facilities.
§ 245-278.3 Applicability.
Any telecommunications carrier wishing to place small cell equipment and/or wireless poles in the public right-of-way must first enter into a master license agreement with the Township. The placement of specific small cell equipment onto existing poles or the erection of wireless poles shall require the issuance of a supplemental license from the Township Council based on recommendations by the Township Communications Technician.
If the Township's Land Use and Development ordinances require site plan approval, or the approval of any variances from the Township's Planning Board or Zoning Board of Adjustment, the applicant shall be required to secure any approvals and/or variances following the granting of a license under this chapter. A Planning Board or Board of Adjustment application for the construction, installation, or location for telecommunications facilities shall not be deemed complete until a license under this chapter is granted by the Township.
Colocation. The shared use of existing freestanding or roof-mounted facilities shall be preferred to the construction of new facilities in order to minimize adverse visual impacts associated with the proliferation of towers.
No application to construct a new freestanding or roof-mounted personal wireless telecommunication service facility shall be approved unless the applicant demonstrates to the reasonable satisfaction of the Township that no existing personal wireless telecommunication service facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted to demonstrate that no existing personal wireless telecommunication service facility can accommodate the applicant's proposed facility shall consists of one or more of the following:
No existing facilities are located within the geographic area required to meet with applicant's coverage demands.
Existing facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height.
Existing facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.
Existing facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably.
The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing facility, or the antennas on the existing facility would cause interference with the applicant's prosed antenna.
The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render existing facilities or structures unsuitable.
No telecommunications carrier or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the Township, the owner or operator shall provide evidence and a written statement to explain why colocation is not possible at a particular facility or site.
If a telecommunication competitor attempts to colocate a personal wireless telecommunication service facility on an existing or approved facility or location, and the parties cannot reach an agreement, the Township may require a third-party technical study to be completed at the applicant's expense to determine the feasibility of colocation for new freestanding personal wireless telecommunication facilities shall provide evidence that the facility can accommodate colocation of additional carriers.
Applicants for new freestanding personal wireless telecommunication facilities shall provide evidence that the facility can accommodate colocation of additional carriers.
A telecommunications carrier who is issued a license pursuant to this section who wishes to add, supplement, or modify the telecommunications facility for which the license was previously granted shall be required if the addition, supplement or modification does not materially change the overall size, dimensions or appearance of the telecommunications facility.
Any person who desires a license pursuant to this section shall file an application with the Township Administrator. The application shall include the following information:
The identity of the license applicant, including all affiliates of the applicant.
A description of the telecommunications services that are or will be offered or provided.
A description of the telecommunications facility(ies).
A description of the transmission medium that will be used by the license to offer or provide telecommunications services.
Preliminary engineering plans, a survey, specifications, and a network map of the telecommunications facility to be located within the Township, all in sufficient detail to identify:
The location and route requested for applicant's proposed telecommunications facility.
The location of all antennae, calls and nodes for applicant's proposed telecommunications facility. Location of all overhead and underground public utility, telecommunications, cable, water, sewer drainage and other facilities in the public way along the proposed route.
The location of all overhead and underground public utility, telecommunications, cable, water, sewer drainage, and other facilities in the public way along the proposed route.
The specific trees, structures, improvements, facilities, and obstructions, of any, that applicant proposed to temporarily or permanently remove, relocate or alter.
Federal requirements. All personal wireless telecommunication facilities shall meet the current standards and regulations of the FAA, the FCC, and any other agency of the federal government with the authority to regulate personal wireless telecommunication service facilities. Failure to meet such revised standards and regulations shall constitute grounds for revocation of Township approvals and removal of the facility at the owner's expense.
Safety standards. All personal wireless telecommunications facilities shall conform to the requirements of the international building code and national electrical code, as applicable.
Abandonment. Personal wireless telecommunication facilities which are abandoned by nonuse, disconnection of power service, equipment removal or loss of lease for greater than six months shall be removed by the facility owner. Should the owner fail to remove the facilities, the Township may do so at its option, and the costs thereof shall be a charge against the owner and reconvened by certification of the same to the County Treasurer for collection as taxes. If an owner wishes to begin utilizing abandoned equipment again, it must submit a new application.
Third party review.
Telecommunications carriers use various methodologies and analysis tools, including geographically based computer software to determine the specific technical parameters of facilities, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances, there may be a need for expert review by a third party of the technical data submitted by the provider. The Township may require such a technical review to be paid for by the applicant for a telecommunications facility. The selection of the third-party expert may be by mutual agreement between the applicant and the Township or at the discretion of the Township, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the facilities and now a subjective review of the site selection. The expert review of the technical submission shall address the following:
The accuracy and completeness of the submission;
The applicability of analysis techniques and methodologies;
The validity of conclusions reached;
Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain relocate and remove the telecommunications facilities.
Information to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and telecommunications services described in the application;
Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the telecommunications facilities and to offer or provide the telecommunications services;
Information to establish that the telecommunications facility meets the current standards and regulations of any agency of the federal government with the authority to regulate telecommunications facilities;
Information to establish that the proposed telecommunications facility conforms to the requirements of the international building code and national electrical code, as applicable;
Any specific technical issues designated by the Township.
Based on the results of the third-party review, the Township may require changes to the application for the facility that comply with the recommendation of the expert.
Master license agreement.
A master license agreement entered into pursuant to this chapter shall include the following provisions:
The term shall not exceed 25 years.
The following conditions shall apply to the issuance of site-specific supplemental licenses for:
Small cell equipment.
The proposed installation must not be in excess of the height of the existing pole, before the installation, plus six feet.
The proposed installation shall be constructed, finished, painted and 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 in surrounding properties.
Proposal must include an engineer's certification verifying the structural integrity of the pole.
The placement of equipment cabinets along with any small cell equipment installation must be conforming to the following:
For sites located within Nonresidential Zones, no pole-mounted small cell equipment may project beyond the side of the pole more than 30 inches.
Except for in a flood zone, no ground-mounted small cell equipment (i) may exceed seven feet in height, (ii) occupy more than 36 square feet of ground area, (iii) be located more than 15 feet from the existing pole, (iv) may fail to comply with required sight triangles and breakaway design in accordance with AASHTO regulations. However, applicant may seek relief from this requirement from the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70(d)(1).
No small cell equipment shall be placed within 500 feet of an existing small cell equipment installation. This shall not preclude the colocation of two such facilities on the same pole, or within the same vault.
The cumulative size of a small cell equipment installation for any one size shall not exceed 20 cubic feet.
Wireless poles.
Wireless poles are not permitted in Residential Zones that, as of June 30, 2018, do not have wooden utility poles of any kind already installed. However, applicant may seek relief from this requirement from the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70(d)(1).
Wireless poles shall be of the same type (i.e., wooden, steel) as the existing utility poles located on either side of it and shall not be higher than 115% of the average height of the existing utility poles within 500 feet, but in no event higher than 30 feet in height, and no antenna or attachment shall extend more than six feet above said utility pole. If there are no existing utility poles in the public rights-of-way within 500 feet of the proposed utility pole, the carrier shall submit a plan for a proposed stealth structure for review and approval of the Township Communications Technician.
Wireless poles are not permitted in areas with underground utilities. However, applicant may seek relief from this requirement with the appropriate authorities.
The height of the Wireless Pole, including the small cell equipment installation, cannot be any more than six feet higher than the height of the two nearest existing poles.
The proposed Wireless Pole shall be constructed, finished, painted, 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 in surrounding properties.
No Wireless Pole may be spaced less than 500 linear feet from another existing pole or proposed Wireless Pole that is capable of supporting small cell equipment. However, this requirement may be administratively waived for wireless poles that are proposed to be replaced with Nonresidential Zones where the proposal is determined to be aesthetically consistent with the surrounding landscape.
Applicant must demonstrate that the Wireless Pole has received all necessary historic preservation reviews.
The Wireless Pole cannot exceed 30 feet, or the maximum permitted height of the particular zone in which it is to be located, whichever is taller. However, applicant may seek relief from this requirement from the Zoning Board of Adjustment.
The Wireless Pole cannot be placed in such a way that it encroaches upon blocks sight triangles.
Applicant must demonstrate that the proposed small cell equipment cannot be colocated.
§ 245-278.4 Priority of location and application process.
Location. Small cell facilities that cannot be collocated are permitted in Township rights-of-way, upon facilities in these rights-of-way and on public easements owned by the Township under the following priority:
First, on a Township-owned utility pole, which shall be removed and replaced with a pole designed to contain all antennae and equipment within the pole to conceal any ground-based support equipment and ownership of which pole is conveyed to the Township.
Second, as Township-owned utility pole with attachment of the small cell facilities in a configuration approved by the Township.
Third, on a third-party owned utility pole, (with the consent of the owner thereof), with attachment of the small cell facilities in a configuration approved by the Township.
Fourth, on a traffic signal pole or mast arm in a configuration approved by the Township, or in the case of a DOT facility, by DOT.
Fifth, on a freestanding or ground-mounted facility which meets the definition of and requirements for an alternative tower facility in a location and configuration approved by the Township.
Application process.
Survey. Every applicant must provide the Township with a professional survey demonstrating that the area on which it proposes to place small cell equipment and/or a Wireless Pole is located with the public right-of-way. Applicant must also provide easting and northing coordinates in state plane for inclusion in a GIS inventory.
Small cell equipment. The Township Communications Technician shall review all applications and make a recommendation to the Township Council as to whether a supplemental license is in compliance with the terms of this article and the master license agreement and may therefore be issued.
Wireless poles. The Township Communications Technician shall review all applications and make a recommendation to the Township Council as to whether a supplemental license is in compliance with the terms of this article and the master license agreement and may therefore be issued.
Any denial of a supplemental license must be in writing and provide the facts upon which such a denial is based.
An application for a license under this section shall be accompanied by a payment of a $500 fee.
Pursuant to N.J.S.A. 54:30A-124, the Township shall recover reasonable fees for actual services incurred in the review of all applicants under this section. Applicant shall make a $5,000 deposit toward anticipated municipal expenses which shall be placed in an escrow account. If said escrow account contains insufficient funds to enable the Township to perform its review, the Chief Financial Officer shall provide the applicant a notice of insufficient balance. In order for review to continue, the applicant shall, within 30 days, post a deposit to the account in an amount to be mutually agreed upon.
An applicant, upon receiving a supplemental license for the placement of small cell equipment or a Wireless Pole in the public right-of-way, may proceed in requesting all other necessary street opening permits and building permits, and, upon receiving same, may proceed with construction. Applicants must comply with all other state and federal laws, rules and regulations along with any other applicable local ordinances.
§ 245-278.5 Assignment or transfer of small cell facility licenses.
Ownership or ownership or control of a license issued pursuant to this section may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the Township as expressed by resolution.
§ 245-278.6 General indemnification of Township in connection with telecommunications facilities.
Each license grantee shall indemnify and hold the Township and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a grant agreement made or entered into pursuant to this chapter.
§ 245-278.7 Revocation or termination of license.
The Township may revoke a license granted under this chapter for the following reasons:
Construction or operation without a license.
Construction or operation at an unauthorized location.
Unauthorized substantial transfer of control of the grantee.
Unauthorized assignment of a license.
Unauthorized sale, assignment or transfer or grantee's assets, or a substantial interest therein.
Misrepresentation or lack of candor by or on behalf of a grantee in any application to the Township.
Abandonment of the telecommunications facility. A telecommunications facility shall be deemed "abandoned" if it is either disconnected from power service or unused for greater than six months. Abandoned telecommunications facilities shall be removed by the owner. Should the owner fail to remove the telecommunication facility, Township may do so at its option, and the costs thereof shall be a charge against the owner.
Insolvency or bankruptcy of the grantee.
Material violation of the Township's Revised General Ordinances.
In the event that the Township believes that grounds exist for revocation of a license, it shall give the grantee written notice of the apparent violations or noncompliance, providing a statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding 30 days to furnish evidence:
That corrective action has been undertaken, or is being actively and expeditiously pursued, to remedy the violation or noncompliance; and
That rebuts the alleged violations or noncompliance; and
That it would be in the public interest to impose some penalty or sanction less than revocation.
The Township shall consider the apparent violation or noncompliance in a public meeting, with respect to which the grantee shall be given notice and a reasonable opportunity to be heard concerning the matter.
§ 245-278.8 Notification required.
Any telecommunications carrier who desires to change an existing use, construct, install, operate, maintain, or otherwise locate a telecommunications facility in the Township shall provide notice to property owners certified by the Township Administrator to be within 200 feet of the proposed telecommunications facility.
Notice shall be given to a property owner by:
Serving a copy thereof on the property owner as shown on the current certified tax list, or his or her agent in charge of the property; or
Mailing a copy thereof by certified mail and regular mail to the property owner at the address as shown on the said current certified tax list, and service by mailing shall be deemed complete upon deposit with the U.S. Postal Service; and
Notice pursuant this section shall state the identity of the telecommunications carrier; a description of the telecommunications services that are or will be offered or provided; a description of the location(s) of any telecommunications facilities; and a description of the telecommunications facilities to be installed and the location of the telecommunications facilities. The notice shall also advise that a copy of the applicant's application is on file with the Township Administrator and may be reviewed by the public.
Notice shall include such other and further information as may be required by the Township Administrator.
In the case of an application of an application that seeks to construct, install, operate, maintain, or otherwise locate a telecommunications facility or equipment on any property owned or controlled by the county — including but not limited to, a county right-of-way — the applicant shall also provide notice to and obtain a permit from the county authorizing the placement of such telecommunications facility on any such property or right-of-way.