Cape May City Zoning Code
ARTICLE XIII
Small Wireless Facilities and Poles
[Added 5-4-2021 by Ord. No. 416-2021]
§ 525-87 Conditional use standards for wireless facilities in the municipal right-of-way.
Purpose and scope.
Purpose. The purpose of this article is to establish uniform policies and procedures for the deployment and installation of small wireless facilities in rights-of-way within the City's jurisdiction and owned by the City, which will provide a public health, safety, and welfare benefit consistent with the preservation of the integrity, safe usage, and visual qualities of the rights-of-way and the City as a whole.
Intent. In enacting this article, the City is establishing uniform standards to address issues presented by small wireless facilities, including, without limitation, to:
Prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;
Prevent the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;
Prevent interference with existing facilities and operations of facilities presently lawfully located in rights-of-way or public property;
Ensure reasonable efforts are made to preserve the character of neighborhoods in which facilities are installed;
The City of Cape May as a national historic landmark must ensure reasonable efforts are made to minimize impact and any detriments to the historic character of the City;
Protect against environmental damage, including damage to trees; and
Facilitate the appropriate deployment of small wireless facilities to provide the benefits of reliable access to wireless telecommunications technology, broadband and 9-1-1 services to homes, businesses, schools within the City.
Conflicts with other chapters. This article supersedes all chapters or parts of chapters adopted prior hereto that are in conflict herewith, to the extent of such conflict.
Definitions.
Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless telecommunications services.
Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons to the extent not inconsistent with the terms of this article.
Any person who submits an application and is a wireless telecommunications provider.
A request submitted by an applicant i) for a small cell building/work permit to collocate small wireless facilities in a ROW; or ii) to approve the installation or modification of a utility pole or wireless telecommunications facility support structure in a ROW.
i) A utility pole owned or operated by the City in the rights-of-way, including a utility pole that provides lighting or traffic control functions, including light poles, traffic signals, and structures for signage, and ii) a pole or similar structure owned or operated by the City in the ROW that supports only wireless telecommunications facilities.
To install, mount, maintain, modify, operate, or replace wireless telecommunications facilities on or adjacent to a wireless support structure or utility pole. "Collocation" has a corresponding meaning.
Calendar day.
A one-time charge.
An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the City.
A recurring charge.
The area on, below, or above a roadway, highway, street, sidewalk, alley, utility easement, or similar property, but not including a federal interstate highway, in the City and owned by the City.
A building or work permit authorizing the installation of a small wireless facility.
A wireless telecommunications 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 associated with the facility is cumulatively no more than 16 cubic feet in volume. Small wireless facilities include but are not limited to pole-mounted antenna and pole-mounted cabinets. 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 pole or similar structure that is used in whole or in part for the purpose of carrying electric distribution lines or cables or wires for telecommunications, cable or electric service, or for lighting, traffic control, signage, or a similar function regardless of ownership, including City-owned poles.
Equipment at a fixed location that enables wireless telecommunications between user equipment and a communications network, including: i) equipment associated with wireless telecommunications; and ii) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term does not include the structure or improvements on, under, or within which the equipment is collocated.
Any person, including a person authorized to provide telecommunications service in the state, that builds or installs wireless communication transmission equipment, wireless telecommunications facilities or wireless telecommunications support structures, but that is not a wireless telecommunications services provider.
A wireless telecommunications infrastructure provider or a wireless telecommunications services provider.
Any services, whether at a fixed location or mobile, provided using wireless telecommunications facilities.
A person who provides wireless telecommunications services and is authorized to provide such services pursuant to an FCC license.
A freestanding structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure designed to support or capable of supporting wireless telecommunications facilities. Such term shall not include a utility pole.
Permitted conditional use; application and fees.
Permitted conditional use: Collocation of a small wireless facility or a new or modified utility pole or wireless support structure for the collocation of a small wireless facility shall be a permitted conditional use requiring review by the Planning Board subject to the procedures in Subsection D and the standards and restrictions in Subsection E. If the applicant is unable to meet one or more of the standards and restrictions contained herein, a conditional use variance will be required, and the application will be heard by the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70(d)(3).
Permit required. No person shall place a small wireless facility in the rights-of-way without first filing a small wireless facility application and obtaining a small cell building/work permit therefore, except as otherwise provided in this article.
Permit application. All small wireless facility applications for small cell building/work permits filed pursuant to this article shall be on a form, paper or electronic, provided by the City.
Application requirements. The small cell building/work permit application shall be made by the wireless telecommunications provider or its duly authorized representative and shall contain the following:
The applicant's name, address, telephone number, and email address;
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.
A general description of the proposed work and the purpose of the work proposed. The description shall include a map or other overlay showing the location of any proposed facilities, existing streetscape, proposed streetscape after installation of the proposed facilities, and description of materials including color, design, and dimensions.
A small wireless facility shall comply with all applicable building and safety codes.
All applications made pursuant to this section, either to the Planning Board or the Zoning Board, shall comply with the notice requirements set forth in N.J.S.A. 40:55D-12 including publication and notice to owners within 200 feet of the application.
Routine maintenance and replacement. An application shall not be required for: i) routine maintenance; and ii) the replacement or upgrade of a small wireless facility with another small wireless facility that is substantially similar or smaller in size, weight, and height at the same location.
Information updates. Any amendment to information contained in a small cell building/work permit application shall be submitted in writing to the City within 30 days after the change necessitating the amendment.
Application fees. Unless otherwise provided by law, all applications for small cell building/work permits pursuant to this article shall be accompanied by a fee representing a reasonable approximation of the City's costs reasonably incurred as a direct result of the application, but shall not exceed $500 each for up to five small wireless facilities addressed in the application and $100 for each additional small wireless facility, or $1,000 each for applications involving installation of a new pole (i.e., not a collocation).
In addition to the application fee, and pursuant to the Municipal Land Use Law,[1] the applicant shall post a $2,000 escrow deposit toward anticipated municipal expenses related to an application made pursuant to this article.
If the deposit contains insufficient funds to enable the City to perform its review, the City shall provide notice of the insufficient balance. In order to continue review, the applicant shall within 10 days post a deposit to the account in an amount to be mutually agreed upon.
After a final decision has been made regarding the application, the applicant may request a refund of any unused balance from the deposit toward anticipated municipal expenses.
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
Procedure for action on permit applications.
Review of small wireless facility applications.
The City shall review the application for a small cell building/work permit in light of its conformity with applicable regulations of this article and all applicable building and safety codes, and on uniform terms and conditions subject to the following requirements:
Within 10 days of receiving an application, the City must determine and notify the applicant whether the application is complete; or, if an application is incomplete, the City must specifically identify the missing information.
Within 60 days for collocations and 90 days for new poles, render a decision whether the application meets the requirements set forth herein and issue an approval or denial. The applicable time periods will commence upon application submission except that, in the event City provides notice within 10 days of submission that an application is materially incomplete, the applicable time period will commence upon resubmission.
Advise the applicant in writing of its final decision, and in the final decision document the basis for any denial. The applicant may cure the deficiencies identified by the City and resubmit the application within 30 days of the denial without paying an additional application fee. The City shall approve or deny the revised application within 30 days of receipt of the amended application. The subsequent review by the City shall be limited to the deficiencies cited in the original denial.
An applicant seeking to construct, modify or replace a network of small wireless facilities may, at the applicant's discretion, file a consolidated application and receive a single small cell building/work permit for multiple small wireless facilities; provided, however, the City's denial of any site or sites within a single application shall not affect other sites submitted in the same application. The City shall grant a small cell building/work permit for any and all sites in a single application that it does not deny subject to the requirements of this section.
Review of eligible facilities requests. Notwithstanding any other provision of this article, the City shall approve and may not deny applications for eligible facilities requests within 60 days according to the procedures established under 47 CFR 1.40001(c).
Counting time. Pursuant to 47 CFR § 1.6003(e), the counting of time for applications made pursuant to this section shall be by calendar days, provided that if the date calculated in this manner is a holiday or a legal holiday within the relevant state or local jurisdiction, the shot clock date is the next business day after such date.
Waiver of time. Nothing contained herein shall prohibit the applicant from waiving application of the any time-for-decision in order for any application to be reviewed for completeness and decided on the merits.
Small wireless facilities in the ROW; maximum height; other requirements.
Maximum size and design of conditional use. Small wireless facilities, and new or modified utility poles and wireless telecommunications support structures for the collocation of small wireless facilities, may be placed in the rights-of-way as a permitted conditional use subject to the following requirements:
Poles.
No pole shall be taller than 35 feet or 110% of the height of poles in the surrounding streetscape, whichever is higher.
No pole shall be farther than 18 inches from the curbline.
No pole shall be erected in the right-of-way unless it is:
Replacing a existing pole; or
Two hundred linear feet from any other existing pole or proposed pole along the same side of the street, and, not located in an area of underground utilities, and does not inhibit existing sight triangles, and allows adequate room for the public to pass; or
Otherwise approved by the Planning or Zoning Board pursuant to a land development application.
All poles shall be finished and/or painted so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties and the streetscape.
Small wireless facilities. New small wireless facilities in the rights-of-way shall not inhibit existing site triangles and allow adequate room for the public to pass and shall be finished and/or painted so as to blend in compatibly with its background and so as to minimize its visual impact on surrounding properties and the streetscape, or otherwise camouflaged in conformance with the best available stealth technology methods, and shall not exceed the greater of:
Ancillary equipment. The applicant shall specify and depict the size, design, finish, and proposed location of any and all ancillary equipment or support structures associated with a proposed pole, cabinet, or small wireless facility.
Design requirements. For poles or small wireless facilities to be installed or placed within the Historic Preservation District, the Planning Board [or Zoning Board if a conditional use variance is sought pursuant to N.J.S.A. 40:55D-70(d)(3)] may refer the proposed design for comment to the Historic Preservation Commission unless and until the Historic Preservation Commission promulgates uniform design standards for such facilities which shall be incorporated herein by reference once adopted by City Council pursuant to § 529-39F of the City Code. Any specific requirements imposed by the City relating to design or placement of small wireless facilities will be reasonable, non-discriminatory, and objective.
Zoning. Any wireless telecommunications provider that seeks to construct or modify a utility pole, wireless telecommunication support structure or wireless telecommunications facility that exceeds the height or size limits contained in this section, shall be subject to applicable zoning requirements and the requirement to seek approval for variances pursuant to the Municipal Land Use Law.[2]
[2]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
Undergrounding provisions. The applicant shall comply with nondiscriminatory undergrounding requirements that prohibit electric utilities, telecommunications or cable providers from installing structures in the rights-of-way without prior approval by City staff in areas zoned for single-family residential use, provided such requirements shall not prohibit the replacement of existing structures or result in an effective prohibition of service.
Effect of permit.
Authority granted; no property right or other interest created. A small cell building/work permit from the City authorizes an applicant to undertake only certain activities in accordance with this article, and does not create a property right or grant authority to the applicant to impinge upon the rights of others who may already have an interest in the rights-of-way.
Duration. Construction pursuant to a small cell building/work permit issued under this article must be commence within 12 months of issuance of the small cell building/work permit and diligently pursued thereafter, or such small cell building/work permit shall expire.
Removal, relocation or modification of small wireless facility in the ROW.
Notice. Within 90 days following written notice from the City, the wireless provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any small wireless facilities within the rights-of-way whenever the City has determined that such removal, relocation, change or alteration, is necessary for the construction, repair, maintenance, or installation of any City improvement in or upon, or the operations of the City in or upon, the rights-of-way.
Emergency removal or relocation of facilities. The City retains the right and privilege to cut or move any small wireless facility located within the rights-of-way of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. If circumstances permit, the City shall notify the wireless telecommunications provider and provide the wireless telecommunications provider an opportunity to move its own facilities prior to cutting or removing a facility and shall notify the wireless telecommunications provider after cutting or removing a small wireless facility.
Abandonment of facilities. Upon abandonment of a small wireless facility within the rights-of-way of the City, the wireless provider shall notify the City within 90 days. Following receipt of such notice the City may direct the wireless provider to remove all or any portion of the small wireless facility if the City, or any of its departments, determines that such removal will be in the best interest of the public health, safety and welfare.
Rates.
ROW administration rate. A wireless telecommunications provider authorized to place small wireless facilities (including new utility poles or other wireless telecommunications support structures) in the rights-of-way shall pay to the City the rate of $0 annually per small wireless facility.
Attachment rate. The rate to place a small wireless facility on a City-owned pole in the right-of-way shall be $270 per year per City-owned pole. Such compensation together with the application fee and the ROW administration rate specified in this article shall be the sole compensation that the wireless provider shall be required to pay the City.
Cease payment. A wireless provider is authorized to remove its facilities at any time from a City-owned pole in the rights-of-way and cease paying the annual rate to the City. In the case of removal, there shall be no requirement for the City to return or prorate the attachment rate paid.
Make-ready. For City-owned utility poles in the rights-of-way, the City shall provide a good faith description of any make-ready work necessary to enable the pole to support the requested small wireless facility, including pole replacement if necessary, within 60 days after receipt of a completed application. Any make-ready work, including pole replacements, shall be performed by the provider or its qualified contractor.