Tinton Falls City Zoning Code
§ 40-38.1
Placement of Small Cell Facilities and Wireless Poles in Public Right-of-Way.
[Added 4-19-2022 by Ord. No. 2022-1486]
A.
Definitions.
1.
All definitions of words, terms and phrases that are set forth in the Communications Act of 1934, P.L. 73-416, as amended by various statutory enactments including, but not limited to, the Telecommunications Act of 1996 P.L. 104-104, are incorporated herein and are made apart hereof.
2.
All definitions of words, terms and phrases that are set forth in the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1, et. seq., are incorporated herein and are made apart hereof.
3.
All of the definitions of words, terms and phrases that are set forth in the Code of Federal Regulations at 47 C.F.R. § 1.6002, as amended, are incorporated herein and are made a part hereof.
4. PERSONAL WIRELESS SERVICES PUBLIC RIGHT-OF-WAY RIGHT-OF-WAY PERMIT SMALL WIRELESS FACILITIES INFRASTRUCTURE SMALL WIRELESS FACILITY SMART POLE UTILITY POLE WIRELESS COMMUNICATIONS INFRASTRUCTURE
In addition to the foregoing, the following words, terms and phrases shall have the meanings indicated unless an alternate meaning clearly is discernable from the context in which the word, term or phrase is used:
"Personal Wireless Services," as defined in 47 U.S.C. § 332(c)(7)(C), as supplemented and/or as amended.
The surface, the airspace above the surface and the area below the surface of any street, road, highway, lane, alley, boulevard or drive, including the sidewalk, shoulder and area for utilities owned by the Borough of Tinton Falls or County of Monmouth.
An approval from the Borough setting forth the applicant's compliance with the requirements of this subsection.
A Smart Pole meeting the above definition or other collocatable infrastructure designed or deployed for the purpose of supporting small wireless facility, the types of which may be approved by geographical zones as defined by Borough of Tinton Falls.
"Small Wireless Facility," as defined in the Code of Federal Regulations at 47 C.F.R § 1.6002(1), as supplemented and/or as amended per this subsection. Small wireless facility means a wireless facility that meets both of the following qualifications: (i) 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 (ii) all other wireless equipment attached directly to a utility pole associated with the facility is cumulatively no more than 16 cubic feet in volume. 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 decorative utility pole that conceals Small Wireless Facility installation(s) and may include other features such as street lighting, 911 call service access, public access Wi-Fi and surveillance cameras. A Smart Pole must allow for multiple occupants and allow space for municipal use for other services and/or equipment. Smart Poles shall neither have external latches, external hinges, external cabling, or other attachments. The pole should be made of an inherently rust-resistant material (e.g., aluminum alloys or stainless steel).
A wooden or metal pole that is used by public utilities to support electrical wires, telephone wires, coaxial cables, fiber optic cables and like and similar appurtenances.
Infrastructure designed specifically for the purpose of supporting wireless facility equipment deployments, including large-scale (macro) collocatable infrastructure as well as Small Wireless Facilities Infrastructure.
5.
In the event that a term, word or phrase is not defined in any of the aforementioned statutes and is not otherwise defined herein, then that term, word or phrase shall have its common, ordinary meaning.
B.
Small Wireless Facility Right-of-Way Permit Required; Consent to Use Rights-of-Way Required.
1.
No person shall place a Small Wireless Facility in any right-of-way without first filing a Small Wireless Facility Right-of-Way permit application, in the form specified herein and in accordance with the procedures specified herein, with the Borough of Tinton Falls Zoning Officer and obtaining a Right-of-Way permit therefore, except as otherwise may be provided in this subsection. Upon approval of a Right-of-Way permit application, the Right-of-Way permit authorizing placement of a Small Wireless Facility in a public right-of-way shall not be issued by the Borough of Tinton Falls Zoning Officer to any applicant unless:
a.
All Right-of-Way permit application fees and escrow fees, as established herein, have been paid; and
b.
All other governmental permits or other governmental approvals that are required for the deployment(s) proposed by the applicant's Right-of-Way permit application under the New Jersey Uniform Construction Code Act, N.J.S.A. 52:27D-119, et. seq., and the administrative regulations adopted thereunder, Section 15-1 Excavation of Streets, Curbs and Sidewalks, of the Code of the Borough of Tinton Falls of Borough of Tinton Falls, and by any other applicable federal, state or municipal law have been issued by the appropriate issuing authority therefore to the applicant and the applicant has supplied copies of such other permits or approvals to the Borough of Tinton Falls Zoning Officer for inclusion with the applicant's application documents; and
c.
The applicant has entered into a "Right-of-Way Use Agreement" with the Borough, in the approved form that is on file with the Borough Clerk. The approved form of "Right-of-Way Use Agreement" may from time-to-time be revised, supplemented or otherwise amended or replaced. The Borough of Tinton Falls Clerk shall maintain on file the currently approved Right-of-Way Use Agreement version and shall provide a copy to all Right-of-Way permit applicants. Minor deviations to the terms and conditions that are set forth in the approved form of Right-of-Way Use Agreement may be approved by Borough of Tinton Falls Council at the time that it grants consent to use a right-of-way to a Right-of-Way permit applicant.
2.
No approval of a Small Wireless Facility shall be permitted within 500 feet of another Small Wireless Facility unless it can be established by clear and convincing evidence that compliance with these regulations would effectively prohibit the applicant from providing service and that co-location on an existing or previously approved Small Wireless Facility is not feasible. Any claims of applicants of technical incompatibility or inability to collocate need to be demonstrated scientifically by the applicant how technical incompatibility exists, not disproven by the Borough of Tinton Falls. Responsibility for judging proof of said claims lies solely with the Borough of Tinton Falls and/or or its chosen representative(s).
C.
Siting Standards for Poles, Antennas and Cabinets in the Right-of-Way.
1.
Pole Siting Standards.
a.
No pole shall be taller than 35 feet or 110% of the height of the poles in the surrounding streetscape, whichever is less;
b.
No pole shall be closer than 18 inches from the curb or edge of pavement;
c.
Poles shall be located on the same side of the street as existing utility poles;
d.
Poles shall be located at least 300 linear feet from any other existing or proposed poles;
e.
Poles shall be located at common side property lines of adjacent lots to the greatest extent practicable;
f.
Poles shall not adversely impact the accessible route of a public sidewalk;
g.
Poles shall not impact sight distances from public or private streets, driveways or parking lots;
h.
Poles shall not be located in an area with underground utilities;
i.
Poles shall be finished, painted, or otherwise camouflaged, in conformance with best available technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact to surrounding properties.
2.
Ground Level Cabinet Siting Standards.
a.
Ground level cabinets are prohibited in the right-of-way on any public property.
3.
Underground Cabinet Siting Standards.
a.
Underground cabinets are the preferred method of cabinet siting in the Borough and are permitted within all zones;
b.
Underground cabinets shall not disturb any underground utilities;
c.
The applicant shall provide a certification from a New Jersey licensed professional engineer attesting to the structural integrity of any underground cabinet;
d.
Underground cabinets shall be a maximum of 15 square feet at ground level.
4.
Pole Mounted Antenna and Pole Mounted Cabinet Siting Standards.
a.
Pole mounted antennae and cabinets are permitted on existing poles in all zones;
b.
Antennas shall not exceed three cubic feet in volume;
c.
Cabinets shall not exceed 16 cubic feet in volume;
d.
Antennas and cabinets shall be finished, painted, or otherwise camouflaged, in conformance with best available technology methods, so as to blend in compatibly with its background and so as to minimize its visual impact to surrounding properties;
e.
Antennas and cabinets shall not adversely impact the accessible route of a public sidewalk;
f.
Antennas and cabinets shall not impact sight distances from public or private streets, driveways or parking lots;
g.
The applicant shall provide a certification from a New Jersey licensed professional engineer attesting the pole is structurally suitable to carry the proposed antennae and cabinet loads.
D.
Right-of-Way Permit Application Process.
1.
Application Filing. An application for a Right-of-Way permit to place one or more Small Wireless Facility within a right-of-way shall be made on forms which shall be available from the office of the Borough of Tinton Falls Zoning Officer. The application, along with the required application fee and the required escrow fee, shall be filed with the Borough of Tinton Falls Zoning Office. Immediately upon receipt of an application, the Borough of Tinton Falls Zoning Officer shall provide copies of the application and all supporting documents that were submitted by the applicant with the application, to the Borough of Tinton Falls Engineer, Clerk, Construction Official and Director of Law.
2.
Application Form. The Small Wireless Facility Right-of-Way permit application shall be made by a provider of personal wireless services, its duly authorized representative, as noted in a notarized statement from the provider of personal wireless services, on whose behalf the representative is acting, or an entity in the business of deploying wireless communications facilities or infrastructure, and shall contain the following:
a.
The applicant's name, address, telephone number and e-mail address;
b.
The names, addresses, telephone numbers, and e-mail addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application;
c.
A general description of the proposed Small Wireless Facility, existing structure and new structure work to be performed. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with particular emphasis on those matters, including, but not limited to, subservice utilities likely to be affected or impacted by the work proposed along with a description of such other governmental permits or approvals as may be required by applicable law with respect to the proposed installation(s) and a description of such other permits or approvals for which the applicant has applied;
d.
Verification via sworn statement from an appropriate professional that the Small Wireless Facility shall comply with all applicable federal, state and local laws, administrative regulations and codes; with respect to radio frequency emissions, applicant must provide a sworn statement from a qualified radio frequency engineer that the application will comply with all applicable Federal, State, and Local laws regarding radio frequency emissions.
e.
The applicant shall certify that they shall make available approved facilities to all major wireless carriers in the marketplace. The applicant shall further certify that they will encourage, manage and coordinate the location and placement of any interested carrier's equipment on their structure.
f.
Applications for the installation of poles shall require proof of notification to all property owners within 200 feet of each proposed Pole. Notifications shall include a plan and construction details showing the proposed improvements and their location, a written description of the improvements, and contact information for the applicant for any questions.
3.
All applications must include a site plan prepared by a professional engineer licensed in the State of New Jersey that includes the following:
a.
A current survey prepared by a professional surveyor licensed in the State of New Jersey that demonstrates the proposed improvements are located within a public right-of-way.
b.
Right-of-way and property lines in the vicinity of the improvements.
c.
The location and size of all proposed improvements.
d.
The location of all overhead and underground public utilities and other facilities in the public right-of-way.
e.
The specific trees, structures, improvements, facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove, relocate, or alter.
f.
Construction details for all proposed poles, antennae, cells, nodes, equipment cabinets, and other proposed improvements.
4.
Applications for new freestanding Small Wireless Facilities shall provide evidence that the facility can accommodate colocation of additional carriers. No telecommunications carrier or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location.
5.
An applicant seeking to deploy a network of Small Wireless Facilities, all of which are to be located in rights-of-way, may file a batched application for up to 25 Small Wireless Facilities and receive a single Right-of-Way permit for multiple Small Wireless Facilities. Any denial of any individual Small Wireless Facilities within a batched application will not impact the consideration of other sites within the same application.
6.
In the case of an application that seeks to construct, install, operate, maintain, or otherwise locate any improvements on or within County right-of-way, the applicant shall also provide notice to and obtain a permit from the County authorizing the placement of such improvements within such right-of-way.
E.
Procedure on Permit Application; No Exclusive Rights.
1.
The Borough of Tinton Falls shall review the application for a Small Wireless Facility Right-of-Way permit in light of its conformity with the provisions of this subsection, and shall approve or deny a Right-of-Way permit on nondiscriminatory terms and conditions subject to the following requirements:
2.
The Borough of Tinton Falls shall make its final decision to approve or deny the application within the following time frames:
a.
Sixty days from the submission of a complete application to install a Small Wireless Facility upon one or more existing structures.
b.
Ninety days from the submission of a complete application to install a Small Wireless Facility upon one or more new structures.
c.
Ninety days from the submission of a complete batched application to install Small Wireless Facilities upon both existing and new structures.
The time frames described above by which an application shall be either approved or denied may be extended by mutual consent of the applicant and Borough of Tinton Falls. Such consent shall be set forth on a form for such purposes which shall be available from the office of the Borough of Tinton Falls Zoning Officer. Such consent on behalf of the Borough of Tinton Falls shall be exercised by the Borough Administrator, Zoning Officer, or their chosen representative, in his/her reasonable discretion.
3.
The Borough of Tinton Falls Zoning Officer shall notify the applicant in writing of the final decision, and if the application is denied specify the basis for denial; and cite such specific provisions from federal, state, or local laws, administrative regulations or codes as to why the application was denied.
4.
Notwithstanding an initial denial, the applicant may cure any deficiencies identified by the Borough of Tinton Falls within 30 days of the denial without paying an additional application fee, provided the Borough of Tinton Falls Zoning Officer shall approve or deny the revised application within 30 days of receipt of the amended application which shall be limited to the deficiencies specified in the original notice of denial.
5.
A Right-of-Way permit from the Borough of Tinton Falls authorizes an applicant to undertake only certain activities in accordance with this subsection. No approval or consent granted, or Right-of-Way permit issued, pursuant to this subsection shall confer any exclusive right, privilege, license or franchise to occupy or use any public right-of-way within the Borough of Tinton Falls for the delivery of telecommunications services or for any other purpose.
6.
Nothing in this section affects an applicant's obligation to apply for other permits that may be required under this code, such as street opening permits or construction permits, for which the applicant has not yet applied. No Small Wireless Facility Right-of-Way permit shall be approved until the applicant has applied for all other permits and approvals required by all other laws and regulations that are applicable to the applicant's proposed Small Wireless Facility deployment.
F.
Duration. No Right-of-Way permit issued under this subsection shall be valid for a period longer than 12 months unless construction has actually begun and continuously and diligently is pursued to completion. Upon written request from the applicant, the Mayor, upon consultation with the Construction and Zoning Officials, may extend the Right-of-Way permit for a period of up to 12 months so long as construction has begun at the time that the applicant's request for an extension is made.
G.
Routine Maintenance and Replacement. A Small Wireless Facility Right-of-Way permit shall not be required for:
1.
Routine maintenance of a Small Wireless Facility.
2.
The replacement of a Small Wireless Facility with another Small Wireless Facility that is the same or smaller in size, weight and height to the Small Wireless Facility that is being replaced.
3.
Provided, however, that on a location where the Borough of Tinton Falls and/or another provider has placed equipment or facilities, any routine maintenance or replacement that is done shall not occur until written authorization from the Borough of Tinton Falls and/or the other provider, as the case may be, to proceed is provided to the Borough of Tinton Falls, which authorization to proceed shall not unreasonably be withheld by the Borough of Tinton Falls and/or the other provider.
4.
Provided further that if the replacement of a Small Wireless Facility with another Small Wireless Facility includes replacement of the structure to which the Small Wireless Facility is attached, then an application for a Right-of-Way permit shall be required.
5.
Notwithstanding anything to the contrary in this paragraph G, the Police Department, Traffic Safety Division, shall be notified for any activity that involves any road closure or other activity that will impact vehicle or pedestrian traffic.
H.
Fees.
1.
Application Fees. All applications for approval and issuance of a Small Wireless Facility Right-of-Way permit pursuant to this subsection shall be accompanied by a fee as follows:
a.
For applications that do not include the installation of any new structures within a right-of-way the application fee shall be $500 for up to five Small Wireless Facilities with an additional $100 for each Small Wireless Facility beyond five.
b.
For applications that include the installation of a new structure within a right-of-way the application fee shall be $1,000 for up to five Small Wireless Facilities with an additional $100 for each Small Wireless Facility beyond five.
I.
Escrow Fee for Third-Party Professionals and Consultants.
1.
In addition to the application fee, all applications for approval and issuance of a Small Wireless Facility Right-of-Way permit shall be accompanied by an escrow fee of $2,000.
2.
The escrow account deposits are required to pay for the costs of professional services, including engineering, planning, legal and other third-party professional consulting expenses connected with the review of submitted materials, including any traffic engineering review or other special analyses related to the Borough of Tinton Falls' review of the materials submitted by the applicant and the preparation of any reports or any necessary legal agreement regarding rights-of-way use. An applicant is required to reimburse the Borough of Tinton Falls for all fees, costs and expenses of third-party professionals and consultants incurred and paid by the Borough of Tinton Falls for the review process of a Small Wireless Facility Right-of-Way permit application, such as, but not limited to:
a.
Professional fees for reviews by third-party professionals or consultants of applications, plans and accompanying documents;
b.
Issuance of reports or analyses by third-party professionals or consultants to the Borough of Tinton Falls setting forth recommendations resulting from the review of any documents submitted by the applicant;
c.
Charges for any telephone conference(s) or meeting(s), including travel expenses, requested or initiated by the applicant, the applicant's attorney or any of the applicant's experts or representatives;
d.
Review of additional documents submitted by the applicant and issuance of reports or analyses relating thereto;
e.
Review or preparation of right-of-way use agreements, easements, deeds, right-of-way municipal consent ordinances or resolutions and any and all other like or similar documents; and
f.
Preparation for and attendance at all meetings by third-party professionals or consultants serving the Borough of Tinton Falls, such as the Borough of Tinton Falls Attorney, Borough of Tinton Falls Engineer and Borough of Tinton Falls Planner or other experts as required.
3.
The escrow account deposits shall be placed in a separate account by the Borough of Tinton Falls' Chief Financial Officer at the request of the Borough of Tinton Falls Clerk and an account shall be kept of each applicant's deposit. Thereafter:
a.
All third-party professional or consultant fees, costs, expenses and charges shall be paid from the escrow account and charged to the applicant;
b.
Third-party professional or consultant fees shall not be disbursed from escrow if they are for a service performed in the context of an identical paid service between applicant and same third-party who may otherwise be entitled to said fees.
c.
Upon either final denial of a Small Wireless Facility Right-of-Way permit application or upon issuance of a Small Wireless Facility Right-of-Way permit, any moneys not expended for third-party professional or consulting services shall be returned to the applicant within 90 days upon written request by the applicant and as authorized by the Borough of Tinton Falls Council;
d.
If at any time during the application review process 75% of the money originally posted shall have been expended, the applicant shall be required to replenish the escrow deposit to 100% of the amount originally deposited by the applicant;
e.
No Small Wireless Facility Right-of-Way permit application shall be considered complete until such time as the required escrow fee has been posted to guarantee payment of third-party professional or consultant fees, costs, expenses and charges;
f.
All payments charged to the escrow deposit shall be pursuant to vouchers from the third-party professionals or consultants stating the hours spent, the hourly rate and the fees, costs, expenses and charges incurred;
g.
Third-party professionals and consultants submitting charges pursuant to this section shall be permitted to charge for such services at the same rates as they would charge the Borough.
h.
The Borough of Tinton Falls shall render a written final accounting to the applicant on the uses to which the escrow deposit was put. The written final accounting shall include copies of all vouchers that were submitted by third-party professionals and consultants and paid by the Borough of Tinton Falls.
J.
Municipal Access to New Structures. An applicant whose Right-of-Way permit includes the installation of any new Smart Pole structure of any of the types that are defined in paragraph A, Definitions of this subsection shall provide the Borough of Tinton Falls with access to space within the Smart Pole structure for the purpose of deploying Borough of Tinton Falls' own equipment including but not limited to, public access Wi-Fi, 911 call service or security cameras. Notwithstanding the foregoing, the Municipality use shall not interfere with Small Wireless Facilities of any other users of that Smart Pole. Any Municipal use pursuant to this subsection shall include a reimbursement to the applicant, on an annual basis, of the costs, on a dollar-for-dollar basis, of providing the Borough of Tinton Falls with such access. Such costs shall be limited to the costs of providing electricity to the components used by the Borough of Tinton Falls and the costs of any repairs required to be made to the components used by the Borough of Tinton Falls, unless the repair costs are necessitated by the acts of the applicant or subsequent owner of the structure, without regard to whether such acts are negligent or intentional.
K.
Notwithstanding any provision to the contrary, nothing in this subsection should be interpreted to have the effect of prohibiting or effectively prohibiting the deployment of broadband or other communications services.