Linden City Zoning Code
§ 31-50.2.3
Action on Administrative Review Applications.
[Added 6-15-2021 by Ord. No. 65-25]
a.
Review of Applications for Administrative Review.
1.
The City shall review the application in light of its conformity with applicable provisions of this section, and shall issue a permit on nondiscriminatory terms and conditions, subject to the following requirements:
(a)
Within 30 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, and may toll the approval interval in § 31-50.2.3a1(d) below. The applicant may resubmit the completed application and the subsequent review will be limited to the specifically identified missing information subsequently completed, except to the extent material changes to the proposed facility have been made by the applicant (other than those requested or required by the City) in which case a new application and application fee for same must be submitted; and
(b)
If, within 10 days of receiving an application, the City determines that said application is incomplete and notifies the applicant, then the sixty- or ninety-day approval interval the City has for making a final decision shall be reset upon submission by applicant of a new Application containing the missing and incomplete information. The City will then have the full sixty- or ninety-day approval interval, as applicable, to render its final decision on the application.
(c)
If, within more than 10 days but less than 30 days of receiving an application, the City determines that said application is incomplete and notifies the applicant, then the approval interval specified in § 31-50.2.3a1(d) below shall toll until the applicant submits an application containing the missing and incomplete information.
(d)
The City must make its final decision to approve or deny the application within 60 days for a collocation, and 90 days for any new structure, after the application is complete (or deemed complete);
(e)
The City must advise the applicant in writing of its final decision, and in the final decision document the basis for a denial, including referencing specific code provisions and/or regulations upon which the denial was based, including any federal law, or local or state laws and regulations, provided said local and state laws and regulations do not conflict with federal law. Denial may include lack of conformity with City the zoning code as well as local, state and federal environmental, landmark and historical regulations. A decision to deny an application shall be in writing and supported by clear evidence contained in a written record, publicly released, and sent to the applicant. The written decision, supported by such substantial evidence, shall constitute final action by the City. The review period or "shot clock" shall run until the written decision, supported by substantial evidence, is released and sent to the Applicant contemporaneously. The subsequent review by the City shall be limited to the deficiencies cited in the original denial and any material changes to the application made to cure any identified deficiencies.
b.
Undergrounding Provisions. The City shall administer undergrounding provisions in a non-discriminatory manner. It shall be the objective of the City and all public ROW occupants to minimize disruption or discontinuance of service of all kinds to consumers, through mutual obligation to coordinate and timely complete such projects. An occupant shall comply with nondiscriminatory City undergrounding requirements that 1) are in place and published prior to the date of initial filing of the application, and 2) prohibit electric, telecommunications and cable providers from installing above-ground horizontal cables, poles, or equivalent vertical structures in the public ROW; and the City may require the removal of overhead cable and subsequently unused poles. In areas where existing aerial utilities are being moved underground, wireless providers shall retain the right to remain in place, under their existing authorization, by buying out the ownership of the pole(s), subject to the concurrence of the pole owner and consent of the City (which consent may not be unreasonably withheld, conditioned or delayed) or, alternatively, the wireless provider may reasonably replace the existing pole(s) or vertical structure locations for antennas and accessory equipment, as a permitted use, within 50 feet of the prior location, unless a minimally greater distance is necessary for compelling public welfare. In neighborhoods or areas with existing underground utilities that do not have Small Wireless Facilities deployed as a permitted use, a new entrant wireless provider applying after utilities have been placed underground shall first seek existing vertical structure locations, if technically feasible for the wireless service to be deployed. To the degree such vertical structures are not available, and upon receiving an approved permit, the applicant shall be entitled to place poles or vertical structures as necessary to provide the wireless service using vertical structures commensurate with other vertical structures in the neighboring underground utility area. In neighborhoods or areas with existing underground utilities that do have Small Wireless Facilities deployed as a permitted use, a new entrant wireless provider applying after utilities have been placed underground shall first seek existing vertical structure locations, if technically feasible for the wireless service to be deployed. To the degree such vertical structures are not available, and upon receiving an approved permit, the applicant shall be entitled to place poles or vertical structures as necessary to provide the wireless service using vertical structures commensurate with other vertical structures of wireless providers in the neighboring underground utility area. In neighborhoods with underground utilities, whether being converted from overhead utilities or initially underground, microwireless devices, typically strand- mounted, shall be treated like other Small Wireless Facilities in the public ROW, requiring permitted use status, and subject to non-recurring and recurring fees and rates.
c.
Effect of Permit.
1.
Authority Granted; No Property Right or Other Interest Created. A permit from the City authorizes an applicant to undertake only certain activities in accordance with this section, and does not create a property right or grant City to the applicant to impinge upon the rights of others who may already have an interest in the public ROW.
2.
Duration. Any permit for construction issued under this § 31-50.2 shall be valid for a period of six months after issuance, provided that the six-month period shall be extended for up to an additional six months upon written request of the applicant (made prior to the end of the initial six month period) if the failure to complete construction is delayed as a result of circumstances beyond the reasonable control of the applicant.
d.
Removal, Relocation or Modification of a Communications Facility in the ROW.
1.
Notice. Within 90 days following written notice from the City, a provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any Communications Facility within the public ROW whenever the City has determined that such removal, relocation, change or alteration, is reasonably 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 public ROW. The City shall apply the same standards to all utilities in the public ROW.
2.
Emergency Removal or Relocation of Facilities. The City retains the right and privilege to cut power to or move any Communications Facility located within the public ROW of the City, as the City may determine to be necessary, appropriate or useful in response to any public welfare emergency, or safety emergency. If circumstances permit, the City shall notify the provider and provide the provider an opportunity to move its own facilities prior to cutting power to or removing the Communications Facility and in all cases shall notify the provider after cutting power to or removing the Communications Facility as promptly as reasonably possible.
3.
Abandonment of Facilities. A provider is required to notify the City of abandonment of any Communications Facility at the time the decision to abandon is made, however, in no case shall such notification be made later than 30 days prior to abandonment. Following receipt of such notice, the City shall direct the Provider to remove all or any portion of the Communications Facility if the City determines that such removal will be in the best interest of the public safety and public welfare. If the provider fails to remove the abandoned facility within 60 days after such notice, the City may undertake to do so and recover the actual and reasonable expenses of doing so from the provider, its successors and/or assigns.
4.
Structural Reconditioning, Repair and Replacement. From time to time, the City may paint, recondition, or otherwise improve or repair the City poles in a substantial way ("Reconditioning Work"). The provider shall reasonably cooperate with the City to carry out Reconditioning Work activities in a manner that minimizes interference with the provider's approved use of the facility.
(a)
Prior to commencing Reconditioning Work, the City will use reasonable efforts to provide the Provider with at least 120 days prior written notice. Upon receiving that notice, it shall be the provider's sole responsibility to provide adequate measures to cover, remove, or otherwise protect the provider's Communications Facility from the consequences of the Reconditioning Work, including but not limited to paint and debris fallout. The City reserves the right to require the provider to remove all of the provider's Communications Facility from the City pole and surrounding premises during Reconditioning Work, provided the requirement to remove same is contained in the written notice required by this subsection. All cost associated with the protection measures, including temporary removal, shall be the sole responsibility of the provider. If the City fails in good faith to give notice of less than 120 days notice, it will not affect the City's rights under this subsection. In all cases, as much notice as possible should be provided, but in no case less than 30 days notice shall be provided. The City will provide the provider with a date by which its equipment must be protected or removed.
(b)
The provider may request a modification of the City procedures for carrying out Reconditioning Work in order to reduce the interference with provider's operation of its Communications Facility. If the City agrees to the modification, the provider shall be responsible for all reasonable incremental cost related to the modification. If the City poles need to be replaced ("Replacement Work"), the City shall provide provider with at least 120 days written notice to remove its Communications Facilities. The City shall also promptly notify provider when the City Poles have been replaced and provider may re-install its equipment. During the Replacement Work, the provider may maintain a temporary Communications Facility on the property, or after approval by City, on any land owned or controlled by City, in the vicinity of the property. If the property will not accommodate the provider's temporary Communications Facility or if the parties cannot agree on a temporary location, the provider, at its sole option, shall have the right to suspend the applicable permit, until the replacement pole is installed, upon 30 days written notice to the City. If the City poles need to be repaired due to storm or other damage ("Repair Work"), the City shall notify the provider to remove its Communications Facilities as soon as possible. In the event of an emergency, the City shall contact the provider by telephone at its emergency contact of record upon or prior to removing the provider's equipment. Once the City poles have been replaced or repaired, the City will promptly notify the provider that it can reinstall its equipment. During City Repair Work, the provider may maintain a temporary Communications Facility on the property, or after approval by provider, on any land owned or controlled by the City in the vicinity of the property. All cost associated with any removal or protection of Communications Facilities shall be the sole responsibility of the provider, except to the extent caused by third-parties or the City.
e.
Attachment to City Poles in the Public ROW.
1.
Make-Ready. For any attachment to City Poles in the public ROW, the City shall provide a good faith estimate for any make-ready work necessary to enable the City pole to support the proposed facility, including replacement of the pole if necessary, within 60 days after receipt of a completed application requesting attachment to the City pole. Make-ready work including any pole replacement shall be completed within 120 days of written acceptance of the good faith estimate by the provider. Such acceptance shall be signified by payment via check or other commercially reasonable and customary means specified by the City.