The purpose of this article is to regulate the placement, design, construction, modification, maintenance and removal of non-tower-based wireless communication facilities and systems, and to establish uniform standards for the siting, design, camouflaging, permitting, maintenance, and use of such facilities in Concord Township in order to protect the health, safety, and property of Township residents. While the Township recognizes the importance of wireless communications facilities in providing high-quality communications services to its residents and businesses, the Township also recognizes that it has an obligation to protect public safety and to minimize the adverse physical and visual effects of such facilities through the application of the standards set forth in the following provisions.

By enacting this article, the Township intends to:

In compliance with the provisions of this chapter and following the issuance of all required permits and approvals, an applicant may locate and/or co-locate and construct, maintain, modify, operate, or replace support structures in, along, across, upon, and under a public right-of-way.

An applicant and/or provider shall comply with this chapter and all rules, regulations, and design standards adopted by the Township that are consistent with this chapter for the installation and/or co-location of an SWF and construction, maintenance, modification, operation, or replacement of wireless support structures in, along, across, upon, and under the public rights-of-way, unless otherwise prohibited by state or federal law.

All SWFs shall be constructed and maintained so as not to impeded or impair public safety or the legal use of the public right-of-way by the Township, the traveling public, or other public utilities.

Nothing in this chapter precludes the Township from applying its generally applicable health, safety, and welfare regulations when acting on an application for a permit for an SWF in the public right-of-way.

Application required. An applicant must apply to the Township to locate a new SWF and/or co-locate any portion of an SWF on an existing wireless support structure or to construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon or under the public right-of-way. Anyone seeking to perform any of these actions shall first duly file a permit application with the Township, in accordance with the requirements of this chapter and any additional requirements as set forth in the small wireless facilities design standards as adopted by Township resolution and which may be modified from time to time by further resolution of the Township Council.

Permit required. No person shall occupy or use the public right-of-way without first obtaining, under this chapter, the required permit from the Township. Before placing an SWF in the public right-of-way, an owner must apply for and receive a permit. This provision shall not be construed to waive or affect any other application fees, or other construction or work permits necessary for work in the Township. While notice to the Township is required, a permit from the Township shall not be required for routine maintenance or same-size and type replacement of previously approved small wireless facilities that do not interfere with pedestrian or vehicular traffic.

Required application materials. Unless otherwise required by state or federal law, all applicants shall submit to the Township all materials and information associated with each application as outlined below before the application will be deemed administratively complete:

Subject to the provisions of this chapter and granting of the required permits, an applicant may locate and/or co-locate an SWF and construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon and under a public right-of-way.

Prohibited on certain structures. Nontower WCFs shall not be located on single-family detached residences, multifamily dwellings of fewer than 10 units, single-family attached residences or any residential accessory structures.

Prohibited in residential communities when all utilities are underground.

Right-of-way access fees. Each individual applicant will be subject to an annual right-of-way access fee if locating within a Township owned public right-of-way. Such fees shall not be in excess of those amounts deemed reasonable by the FCC.

Application processing costs. Unless otherwise provided by law, all applications for permits pursuant to this chapter shall be accompanied by an application processing fee as follows:

Compensation. In addition to the applicable fee as specified above, every permit shall include as a condition the applicant's agreement to pay a right-of-way access fee of $200 per SWF per year payable on February 5 of each year, and/or other taxes and fees as may now or hereafter be lawfully imposed on other businesses within the Township. Additionally, if the SWF is proposed to be located upon a Township-owned pole located within a Township right-of-way, and the Township consents to such co-location, an additional annual fee of $70 per SWF shall be payable to the Township for such placement. Such fees may be altered by resolution, subject to state and/or federal limits upon such costs.

Small wireless facilities co-located on the Township-owned utility poles or structures outside the Township right-of-way are not subject to the fee limitations in this chapter. Additionally, if the rate limitation imposed by the FCC is altered in the future, the Township may alter its fees by resolution to be consistent with the FCC's determinations or to be consistent with any other regulations of the state or federal government.

Cease payment. Upon 30 days written notice to the Township, an owner is authorized to remove its SWF from a Township-owned pole and cease paying the annual fee to the Township as of the next due date for payment following removal; provided, however, the owner shall pay its pro rata share of the remaining term and expenses, if any.

Make-ready. For Township-owned poles, the applicant shall reimburse the Township for expenses for any reasonable make-ready work, if any is required. The Township shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested SWF, including pole replacement if necessary, within 30 days after receipt of an administratively complete request.

Permit application review.

Applicants seeking to construct, modify, co-locate, or replace more than one SWF, may file, at the applicant's discretion, a consolidated application for up to 30 requests in a single application and receive a single permit for the construction, modification, co-location, or replacement of the SWF subject to the following:

Locations. All SWFs shall be located on existing utility poles or existing wireless support structures. If an applicant is seeking to install a new wireless support structure as part of its application, the Township may propose that the SWF be located on an existing utility pole or existing wireless support structure within 100 feet of the proposed location. The applicant shall accept the proposed alternate location so long as it has the right to use the location on reasonable terms and conditions, unless the alternative location imposes technical limits, acts as an effective prohibition under federal law, or additional unreasonable costs will be incurred as determined by the applicant. If the applicant refuses an alternate location based on the foregoing, the applicant shall provide legally competent evidence in the form of a written certification describing the property rights, technical limits or associated costs that prevent the alternate location from being utilized.

Maximum height.

The Township may reserve space on Township-owned poles for future public safety uses or for Township electric utility uses. Such reservation may preclude co-location of SWF if the Township reasonably determines that the Township's poles cannot accommodate both uses, or if the co-location cannot be accommodated due to physical limitations of the Township-owned poles.

In certain circumstances, co-location may not be feasible, and a new pole may need to be installed by the applicant. In such cases, an SWF located on a new pole shall be separated by 150 feet from any other SWF located upon a pole with that singular purpose (meaning it is not a co-location but another stand-alone SWF pole).

The Design Standards of Attachment 6 — Appendix A of this chapter shall apply, including:

This chapter may not be construed to limit the Township's authority to enforce historic preservation zoning regulations consistent with Township, county, state or federal law including the National Historic Preservation Act of 1966 (54 U.S.C. § 300101 et seq.) and the regulations adopted to implement those laws.

As a condition for approval of a new SWF or new wireless support structures in a historic district or adjacent to a historic structure or protected viewshed, (existing or as established in the future), the applicant shall comply, with the design and aesthetic standards of the historic district, or historic preservation standards in place, to minimize the negative impact to the aesthetics in these districts or areas where the SWF are within 300 feet of the exterior walls of a Township-designated historic resource. The Township Historical Commission shall be notified of the application.

New districts. Nothing in this chapter shall prohibit or otherwise limit the Township from establishing subsequent new town center or historic districts; provided, however, that facilities and structures for which a permit was approved or deemed approved pursuant to this chapter prior to the establishment of the new district remain subject to the provisions of this chapter, including routine maintenance and replacement of those facilities and structures. If a wireless services provider or a wireless infrastructure provider relocates such facilities, such replacement or relocation is subject to the then-existing provisions and requirements of the newly established district.

Permit effect and duration. The Township approval for co-location or a new pole shall be effective for a period of nine months from that date of issuance. If construction, installation or co-location is not begun within such nine-month period, a new application must be submitted for review including all required fees. A permit from the Township authorizes an applicant to undertake only certain activities in accordance with this chapter and does not create a property right or grant any authority whatsoever to the applicant to impinge upon the rights of others.

Compliance with all applicable laws and Township Code. Owner/permittee shall always maintain compliance with all applicable federal, state and local laws, regulations, ordinances, or other rules. If state or federal standards and regulations are amended, the owners of any portion of SWF governed by this chapter shall bring any facilities and/or structures into compliance with the revised standards and regulations within the time mandated by such amendment or, if no time is mandated, as soon as practicable under the circumstances, but no longer than 90 days. The Township is not required to provide notice of any amendments of any law or regulation in order to trigger this responsibility. Failure to bring SWF into compliance with any revised standards and regulations shall constitute grounds for removal at the owner's expense.

Inspections; emergencies. The Township or its designee may inspect any portion of SWF in the right-of-way upon reasonable notice to the owner. The owner shall cooperate with all inspections. The Township reserves the right to support, repair, disable, or remove any elements of the facility in emergencies or when the Township shall notify the owner and provide the opportunity to move such facilities, poles, or support structures prior to the Township doing so, and the Township shall notify the owner after doing so.

Relocation or adjustment as requested by Township. If requested by the Township, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety, and welfare of the public, an owner shall relocated or adjust its facilities within the public right-of-way at no cost to the Township, as long as such request similarly binds all users in or on such public way. Such relocation or adjustment shall be completed in accordance with all applicable law and regulations.

Contact information for responsible parties. Within 10 days of any changes to any contact information provided in the application, the applicant shall provide notice of the change to the Township.

Indemnification. Any entity who owns or operates an SWF in the public right-of-way shall indemnify, protect, defend and hold the Township harmless and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the entity who owns or operates the SWF and wireless service in the right-of-way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in the right-of-way.

Good condition required. SWFs shall at all times be kept and maintained in good condition, order, and repair by qualified maintenance and construction personnel, so that the same shall not menace or endanger the health, safety or welfare of any person or property. All SWFs shall be subject to generally applicable property maintenance requirements and to visual inspection by Code Enforcement Officers.

Relocation for public improvement projects. To the extent that the Township requires it to do so in the reasonable exercise of its police powers, owner shall remove and relocate the permitted SWF at owner's sole expense to accommodate construction of a public improvement project by the Township.

If an SWF is discontinued for a period of 120 days or is abandoned without notice from the owner, it shall be considered abandoned and the Township may remove it at the owner's expense if the Township provides written notice of its intent to remove under this section and, within 30 days after receipt of such written notice, the owner of the SWF does not reply to the Township in writing that the SWF continues to be in operation. Costs for such removal shall be collectible as allowed by law.

The Township reserves the right to inspect ad to request information from the owner, which the owner shall provide following such request, as to the continued use of the operator's SWF(s) within the right-of-way.

Prevention of failures and accidents. Any person who owns or operates a portion of an SWF sited in the public right-of-way shall always employ ordinary and reasonable care and install and maintain the facilities using industry standard technology for preventing failures and accident which are likely to cause damage, injury, or nuisance to the public.

Compliance with fire safety and FCC regulations:

Each attachment of wireless facilities should bear a marker or insignia legible at street level, identifying the owner of the SWF and contact information.

An eight-foot-high security fence shall surround any separate communications equipment building. Vehicular access to the communications equipment building shall not interfere with the parking or vehicular circulations on the site for any existing principal use.

Development regulations. Nontower WCFs may be co-located on existing nonresidential buildings or structures, on multifamily residential buildings with 10 or more units and/or on other facilities such as schools, hospitals, and residential rehabilitation centers. Such as existing buildings or tower-based WCFs subject to the following conditions:

Property owned by a private party without the written consent of the property owner;

Property owned or controlled by a unit of local government that is not located within the public rights-of-way without the written consent of the unit of local government (local governments are required to authorize the co-location of small wireless facilities on utility poles owned or controlled by the local government or located within rights-of-way to the same extent the local government permits access to utility poles for other commercial projects or users);

A privately owned utility pole or wireless support structure, without the consent of the property owner; or

Property owned, leased or controlled by a park district, forest preserve district, or conservation district for public park, recreation or conservation purposes, without the consent of the affected district.

Penalties. Any person violating any provision of this Article XXXVI shall be subject, upon a finding by a Magisterial District Judge, to a penalty not exceeding $500, for each and every offense, together with attorneys' fees and costs. A separate and distinct violation shall be deemed to be committed each day on which a violation occurs or continues to occur after notice. In addition to an action to enforce any penalty imposed by this article and any other remedy at law or in equity available to the Township, the Township may apply to a federal district court for an injunction or other appropriate relief at law or in equity to enforce compliance with or restrain violation of any provision of this article.

Determination of violation. In the event a determination is made that a person has violated any provision of this article, such person shall be provided written notice of the determination of violation and the reasons therefor. Except in the case of an emergency, the person shall have 30 days to cure the violation. If the nature of the violation is such that it cannot be fully cured within such time period, the Township may, in its reasonable judgment, extend the time period to cure. If the violation has not been cured within the time allowed, the Township may take any and all actions authorized by this article and/or federal and/or Pennsylvania law and regulations.

Police powers. The Township, by granting any permit or taking any other action pursuant to this chapter, does not waive, reduce, lessen or impair the lawful police powers vested in the Township under applicable federal, state and local laws and regulations.