The purpose of this article is to establish uniform standards for the siting, design, permitting, maintenance, and use of wireless communications facilities in Jenkintown Borough. While the Borough recognizes the importance of wireless communications facilities in providing high-quality communications service to its residents and businesses, the Borough also recognizes that it has an obligation to protect public safety and to minimize the adverse visual effects of such facilities through the standards set forth in the following provisions.

By enacting this article, the Borough intends to:

Standard of care. Any tower-based WCF shall be designed, constructed, operated, maintained, repaired, modified and removed in strict compliance with all current applicable technical, safety and safety-related codes, including, but not limited to, the most recent editions of the American National Standards Institute (ANSI) Code, National Electrical Safety Code, National Electrical Code, as well as the accepted and responsible workmanlike industry practices of the National Association of Tower Erectors. Any tower-based WCF 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 endanger the life of any person or any property.

Wind. Any tower-based WCF structures shall be designed to withstand the effects of wind according to the standard designed by the American National Standards Institute as prepared by the engineering departments of the Electronics Industry Association, and Telecommunications Industry Association (ANSFEINTIA-222-E Code, as amended).

Height. Any tower-based WCF shall be designed at the minimum functional height and shall not exceed a maximum total height of 150 feet, which height shall include all subsequent additions or alterations. All tower-based WCF applicants must submit documentation to the Borough justifying the total height of the structure.

Public safety communications. No tower-based WCF shall interfere with public safety communications or the reception of broadband, television, radio or other communication services enjoyed by occupants of nearby properties.

Maintenance. The following maintenance requirements shall apply:

Radio-frequency emissions. No tower-based WCF may, by itself or in conjunction with other WCFs, generate radio-frequency emissions in excess of the standards and regulations of the FCC, including, but not limited to, the FCC Office of Engineering Technology Bulletin 65, entitled "Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields," as amended.

Historic buildings or districts. No tower-based WCF may be located on a building or structure that is listed on either the National or Pennsylvania Register of Historic Places or is identified as a community historic structure or has been designated as being of historic significance in the Jenkintown Borough Comprehensive Plan, or is located within the Historic District, as defined by Article II of the Borough Zoning Code.

Identification. All tower-based WCFs shall post a notice in a readily visible location identifying the name and phone number of a party to contact in the event of an emergency, subject to approval by the Borough.

Lighting. Tower-based WCFs shall not be artificially lighted, except as required by law and as may be approved by the Borough. If lighting is required, the applicant shall provide a detailed plan for sufficient lighting, demonstrating as unobtrusive and inoffensive an effect as is permissible under state and federal regulations.

Appearance. Towers shall be galvanized and/or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings.

Noise. Tower-based WCFs shall be operated and maintained so as not to produce noise in excess of applicable noise standards under state law and the Borough Code, except in emergency situations requiring the use of a backup generator, where such noise standards may be exceeded on a temporary basis only.

Aviation safety. Tower-based WCFs shall comply with all federal and state laws and regulations concerning aviation safety.

Retention of experts. The Borough may hire any consultant(s) and/or expert(s) necessary to assist the Borough in reviewing and evaluating the application for approval of the tower-based WCF and, once approved, in reviewing and evaluating any potential violations of the terms and conditions of this article. The applicant and/or owner of the WCF shall reimburse the Borough for all costs of the Borough's consultant(s) in providing expert evaluation and consultation in connection with these activities.

Timing of approval. Within 30 calendar days of the date that an application for a tower-based WCF is filed with the Borough, the Borough shall notify the applicant in writing of any information that may be required to complete such application. All applications for tower-based WCFs shall be acted upon within 150 days of the receipt of a fully completed application for the approval of such tower-based WCF, and the Borough shall advise the applicant in writing of its decision. If additional information is requested by the Borough to complete an application, the time required by the applicant to provide the information shall not be counted toward the one-hundred-fifty-day review period.

Nonconforming uses. Nonconforming tower-based WCFs which are hereafter damaged or destroyed due to any reason or cause may be repaired and restored at their former location, but must otherwise comply with the terms and conditions of this article.

Removal. In the event that use of tower-based WCFs is planned to be discontinued, the owner shall provide written notice to the Borough of its intent to discontinue use and the date when the use shall be discontinued. Unused or abandoned WCFs or portions of WCFs shall be removed as follows:

Permit fees. The Borough may assess appropriate and reasonable permit fees directly related to the Borough's actual costs in reviewing and processing the application for approval of a tower-based WCF, as well as related inspection, monitoring and related costs.

Development regulations.

Notice. Upon receipt of an application for a tower-based WCF, the Borough shall mail notice thereof to the owner or owners of every property within 500 feet of the parcel or property of the proposed facility.

Co-location. An application for a new tower-based WCF shall not be approved unless the Borough finds that the wireless communications equipment planned for the proposed tower-based WCF cannot be accommodated on an existing or approved structure or building. Any application for approval of a tower-based WCF shall include a comprehensive inventory of all existing towers and other suitable structures within a two-mile radius from the point of the proposed tower, unless the applicant can show to the satisfaction of the Borough that a different distance is more reasonable, and shall demonstrate conclusively why an existing tower or other suitable structure cannot be utilized.

Design regulations.

Surrounding environs.

Fence/screen.

Accessory equipment.

Additional antennas. As a condition of approval for all tower-based WCFs, the WCF applicant shall provide the Borough with a written commitment that it will allow other service providers to co-locate antennas on tower-based WCFs where technically and economically feasible and that the WCF applicant shall not unreasonably withhold such permission. The owner of a tower-based WCF shall not install any additional antennas without obtaining the prior written approval of the Borough.

Access road. An access road, turnaround space and parking shall be provided to ensure adequate emergency and service access to a tower-based WCF. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and minimize soil erosion. Where applicable, the WCF owner shall present documentation to the Borough that the property owner has granted an easement for the proposed facility.

Financial security. Prior to the issuance of a permit, the owner of a tower-based WCF outside the ROW shall, at its own cost and expense, obtain from a surety licensed to do business in Pennsylvania and maintain financial security acceptable to the Borough Solicitor, in an amount of $100,000, to assure the faithful performance of the terms and conditions of this article. The financial security shall provide that the Borough may recover from the principal and surety any and all compensatory damages incurred by the Borough for violations of this article, after reasonable notice and opportunity to cure. The owner shall file the financial security with the Borough.

Visual or land use impact. The Borough reserves the right to deny an application for the construction or placement of any tower-based WCF based upon visual and/or land use impact.

Inspection. The Borough reserves the right to inspect any tower-based WCF to ensure compliance with the provisions of this article and any other provisions found within the Borough Code or state or federal law. The Borough and/or its agents shall have the authority to enter the property upon which a WCF is located at any time, upon reasonable notice to the operator, to ensure such compliance.

Prohibited in certain zones. No tower-based WCF shall be located in residential districts or within 500 feet of a lot in residential use or a residential district boundary without the exception of the HR Zoning District where it may be permitted by special exception.

Gap in coverage. An applicant for a tower-based WCF must demonstrate that a significant gap in wireless coverage exists with respect to all wireless operators in the applicable area and that the type of WCF being proposed is the least intrusive means by which to fill that gap in wireless coverage. The existence or nonexistence of a gap in wireless coverage shall be a factor in the Borough's decision on an application for approval of tower-based WCFs in the ROW.

Notice. Upon receipt of an application for a tower-based WCF, the Borough shall mail notice thereof to the owner or owners of every property within 500 feet of the parcel or property of the proposed facility.

Co-location. An application for a new tower-based WCF in the ROW shall not be approved unless the Borough finds that the proposed wireless communications equipment cannot be accommodated on an existing structure, such as a utility pole or traffic light pole. Any application for approval of a tower-based WCF shall include a comprehensive inventory of all existing towers and other suitable structures within a one-mile radius from the point of the proposed tower, unless the applicant can show to the satisfaction of the Borough that a different distance is more reasonable, and shall demonstrate conclusively why an existing tower or other suitable structure cannot be utilized.

Time, place and manner. The Borough shall determine the time, place and manner of construction, maintenance, repair and/or removal of all tower-based WCFs in the ROW based on public safety, traffic management, physical burden on the ROW, and related considerations. For public utilities, the time, place and manner requirements shall be consistent with the police powers of the Borough and the requirements of the Public Utility Code.

Visual or land use impact. The Borough reserves the right to deny the construction or placement of any tower-based WCF in the ROW based upon visual and/or land use impact.

Additional antennas. As a condition of approval for all tower-based WCFs in the ROW, the WCF applicant shall provide the Borough with a written commitment that it will allow other service providers to co-locate antennas on tower-based WCFs where technically and economically feasible. The owner of a tower-based WCF shall not install any additional antennas without obtaining the prior written approval of the Borough.

Relocation or removal of facilities. Within 60 days following written notice from the Borough, or such longer period as the Borough determines is reasonably necessary or such shorter period in the case of an emergency, an owner of tower-based WCF in the ROW shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any WCF when the Borough, consistent with its police powers and applicable Public Utility Commission regulations, shall determine that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:

Compensation for ROW use. In addition to permit fees as described in § 181-144Q of this article, every tower-based WCF in the ROW is subject to the Borough's right to fix annually a fair and reasonable compensation to be paid for use and occupancy of the ROW. Such compensation for ROW use shall be directly related to the Borough's actual ROW management costs, including, but not limited to, the costs of the administration and performance of all reviewing, inspecting, permitting, supervising and other ROW management activities by the Borough. The owner of each tower-based WCF shall pay an annual fee to the Borough to compensate the Borough for the Borough's costs incurred in connection with the activities described above. The annual ROW management fee for tower-based WCFs shall be determined by the Borough and authorized by resolution of Borough Council and shall be based on the Borough's actual ROW management costs as applied to such tower-based WCF.

Financial security. Prior to the issuance of a permit, the owner of a tower-based WCF in the ROW shall, at its own cost and expense, obtain from a surety licensed to do business in Pennsylvania and maintain financial security acceptable to the Borough Solicitor, in an amount of $100,000, to assure the faithful performance of the terms and conditions of this article. The financial security shall provide that the Borough may recover from the principal and surety any and all compensatory damages incurred by the Borough for violations of this article, after reasonable notice and opportunity to cure. The owner shall file the financial security with the Borough.

Co-location. Nontower WCFs in the ROW shall be co-located on existing poles, such as existing utility poles or light poles.

Design requirements.

Compensation for ROW use. In addition to permit fees as described above, every nontower WCF in the ROW is subject to the Borough's right to fix annually a fair and reasonable compensation to be paid for use and occupancy of the ROW. Such compensation for ROW use shall be directly related to the Borough's actual ROW management costs, including, but not limited to, the costs of the administration and performance of all reviewing, inspecting, permitting, supervising and other ROW management activities by the Borough. The owner of each nontower WCF shall pay an annual fee to the Borough to compensate the Borough for its costs incurred in connection with the activities described above. The annual ROW management fee for nontower WCFs shall be determined by the Borough and authorized by resolution of the Borough Board of Supervisors and shall be based on the Borough's actual ROW management costs as applied to such nontower WCF.

Time, place and manner. The Borough shall determine the time, place and manner of construction, maintenance, repair and/or removal of all nontower WCFs in the ROW based on public safety, traffic management, physical burden on the ROW, and related considerations. For public utilities, the time, place and manner requirements shall be consistent with the police powers of the Borough and the requirements of the Public Utility Code.

Equipment location. Nontower WCFs and accessory equipment shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, or to otherwise create safety hazards to pedestrians and/or motorists or to otherwise inconvenience public use of the ROW as determined by the Borough. In addition:

Relocation or removal of facilities. Within 60 days following written notice from the Borough, or such longer period as the Borough determines is reasonably necessary, or such shorter period in the case of an emergency, an owner of a WCF in the ROW shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any WCF when the Borough, consistent with its police powers and applicable Public Utility Commission regulations, shall have determined that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:

Visual or land use impact. The Borough retains the right to deny an application for the construction or placement of a nontower WCF based upon visual and/or land use impact.

Penalties. Any person violating any provision of this article shall be subject, upon 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. In addition to an action to enforce any penalty imposed by this article and any other remedy at law or in equity, the Borough 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 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 Borough may, in its reasonable judgment, extend the time period to cure, provided that the person has commenced to cure and is diligently pursuing its efforts to cure. If the violation has not been cured within the time allowed, the Borough may take any and all actions authorized by this article and/or federal and/or Pennsylvania law and regulations.

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