Purpose. The purpose and intent of this article is for the Borough to exercise its lawful authority to grant consent to the limited use of the public rights-of-way and to allow the attachment of facilities only to existing wooden utility poles located therein pursuant to N.J.S.A. 48-19,[1] subject to certain conditions as stated herein, in order to allow the prompt deployment of facilities while also effectively managing the public rights-of-way and protecting the aesthetic and safety interests of the public.

Facilities subject to this article. This article applies to all facilities, as herein defined, within the public rights-of-way, except as otherwise provided in any existing franchise, license or similar agreement. All facilities proposed to be placed within the public rights-of-way, including all facilities proposed to be placed by utilities regulated by the Board of Public Utilities and all other entities lawfully within the public rights-of-way, shall be subject to the standards and procedures set forth in this article and shall require a permit for the siting of poles, antennas, and cabinets or other facilities in the public rights-of-way. The deployment of facilities on private property and public property outside of the public rights-of-way shall not be controlled by this article or the Master License Agreement, but by other applicable Borough ordinances and the New Jersey Municipal Land Use Law. In no event shall this section apply to the Borough or facilities owned or operated by the Borough.

Master License Agreement required. Every carrier seeking to install facilities in the public rights-of-way, excluding those holding a franchise, license or similar agreement with the Borough, shall first enter into the Master License Agreement substantially complying with the requirements of this article and apply for and obtain a zoning permit and construction permit as provided herein. The execution of the Master License Agreement by the carrier and the Borough shall grant the Borough's consent to the carrier to utilize the public rights-of-way pursuant to N.J.S.A. 48-19[2] and N.J.S.A. 27:16-6 and subject to this article, shall control the installation, maintenance, and removal of the facilities.

Duration of consent and removal. The nonexclusive consent granted to the carrier shall expire in 10 years unless earlier terminated. Carrier may cancel the Master License Agreement upon 60 days' prior written notice to the Borough.

Application requirements. The application shall contain, at a minimum, the following:

Application fees. All applications for zoning permits pursuant to this article shall be accompanied by a fee in the following amounts:

Installation of facilities. It shall be lawful for any permittee to install facilities in the public rights-of-way only on existing wooden poles, provided that the permittee complies with all requirements of this article and the terms and conditions of the Master License Agreement.

New poles; structures. No new poles or other structures shall be erected for the purpose of placing facilities regulated herein. The setting of utility poles is regulated by the New Jersey Board of Public Utilities ("BPU"). The Borough authorizes only the utility company to set utility poles in the public rights-of-way in their normal course as they deem appropriate and/or necessary subject to BPU regulation.

Distance. No proposed pole-mounted facility or other facility shall be placed within 200 feet of an existing pole-mounted facility or other facility.

Volume of antenna. The volume of each antenna shall not exceed three cubic feet.

Volume of facility. All other facilities and associated wireless equipment, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the pole shall not exceed more than 28 cubic feet in volume.

Site triangles. No pole or facility shall interfere with the public's use of the public rights-of-way and shall not hinder any sight triangles or otherwise cause unsafe driving conditions for vehicles or pedestrians within the public rights-of-way.

Minimum height of pole-mounted facility. All facilities shall be pole mounted at a minimum of 10 feet from the ground and/or shall conform to all Flood Hazard Area Ordinance requirements of the Borough including but not limited to base flood plus elevations required, and the current flood elevations established by the Federal Emergency Management Agency (FEMA) whichever is higher.

Maximum height. All facilities including their antennas shall:

Quantity. Pole mounted equipment shall be limited to one antenna and one cabinet or other mounted device at each site per carrier.

Ground-mounted equipment. No ground-mounted equipment is permitted on or around any pole.

Camouflage. All cabinets, antennas, conduit and equipment shall be a color that blends with the wooden utility pole on which it is mounted. Any cables or wiring attached to the utility pole shall be covered with an appropriate conduit; all facilities must be finished and/or painted and/or otherwise camouflaged, in conformance with the best available stealth technology methods, so as to blend in compatibility with its background and so as to minimize its visual impact on surrounding properties.

Construction permits. Subsequent to the issuance of the zoning permit, the permittee shall obtain any necessary permits required pursuant to the current Uniform Construction Code adopted in New Jersey prior to installation.

Other approvals. All applicants shall obtain any and all approvals necessary from any other governmental agency in addition to the owner and/or operator of the wooden utility poles to be used.

Underground work. All underground work shall follow standard road opening permit requirements of the Borough.

Cooperation. All carriers shall cooperate with each other to minimize the impact and number of facilities on and in the public rights-of-way.

The zoning officer or board engineer shall deem the application complete or incomplete within 30 days of filing of the application. In the event the application is materially incomplete, fails to conform to the application requirements of this article, or the application is otherwise insufficient to either approve or reject, the application shall be deemed incomplete by providing a notice of deficiency to the applicant informing the applicant of the specific nature of the deficiency. The Zoning Officer or Board Engineer shall have 10 days after re-filing of the application to deem it complete or incomplete.

If the application conforms to the application requirements of this article, and no deviations from § 85-2506, Conditions and requirements, exists, the Zoning Officer shall issue a permit within 30 days of the date the application was deemed complete.

In the event the application is found to contain deviations from § 85-2506, Conditions and requirements, the applicant may modify the proposed facility so that it conforms to this article and submit revised plans to the Zoning Officer for approval, or within 20 days of the written notice of denial request in writing to the Zoning Officer that the application be referred to the Zoning Board for review and decision pursuant to N.J.S.A. 40:55D-73.

The applicant shall have the right to appeal any decision of the Zoning Officer to the Zoning Board of Adjustment for review and decision pursuant to N.J.S.A. 40:55D-72.

Request for deviation. An applicant proposing to deviate from one or more of the provisions of § 85-2506, Conditions and requirements, shall do so in writing as part of the permit application. The request shall identify each provision of this section from which a deviation is requested and the reason why a deviation should be granted.

Referral to and direct filing with Zoning Board of Adjustment. For collocation applications that contain deviations from § 85-2506, Conditions and requirements, that were referred to the Zoning Board, or were filed directly with the Zoning Board, the Zoning Board shall render a decision approving or denying the application within 90 days of the date of referral, or date the application was deemed complete, whichever is later. For all other non-collocation applications, the Zoning Board shall render a decision approving or denying the application within 120 days of the date of referral, or date the application was deemed complete, whichever is later.

Standard of review. The Zoning Board may waive any conditions of § 85-2506, Conditions and requirements, where the applicant demonstrates that the strict enforcement of said standard:

Review escrow fees. Any reasonable professional fees incurred by the Borough in its review of a request for a deviation shall be paid to the Borough at the time of filing the application, or within 30 days of a referral of the application to the Zoning Board, but in any event, prior to the issuance of the zoning permit as permitted by N.J.S.A. 54:30A-124. An escrow of $1,500 shall be submitted with each application to cover such fees and be replenished as deemed appropriate by the Zoning Officer or Board Engineer.

Required coverage and limits. Each carrier constructing a facility in the public rights-of-way shall secure and maintain commercial general liability insurance with limits not less than $2,000,000 for injury or death on one or more persons and damage or destruction in any one occurrence insuring the carrier as named insured and listing the Borough as an additional insured and said policies shall be primary and noncontributory as respects the municipality, its officers, officials, employees and volunteers and shall contain a waiver of subrogation clause.

Worker's compensation and employers' liability insurance meeting statutory limits required under all applicable state laws covering all persons employed, retained or contracted with by Carrier. In addition, the Carrier shall provide a certificate of insurance indicating that the Carrier maintains coverage for Employer's Liability as follows: $1,000,000 Per Accident, $1,000,000 Per Employee, and $1,000,000 Per Policy.

Automobile liability insurance with a minimum combined single limit of liability per accident of $1,000,000 for bodily injury and property damage. This insurance must include coverage for owned, hired, and non-owned automobiles.

All such insurance shall be written by a good and solvent insurance company or companies of recognized standing, admitted to do business in the State of New Jersey, and reasonably acceptable to the Borough, as reviewed and approved by the Borough's Risk Management Consultant.

Each carrier shall be required to name the Borough as an "Additional Insured" on the carrier's policy of commercial general liability and automobile insurance. Carrier shall provide the Borough with a Certificate of Insurance and Endorsement indicating that the insurance coverage as described herein, and as is appropriate for the type of use and hazards present, has been obtained and that the Borough has been designated as an "Additional Insured" where required. The Certificate of Insurance and Endorsement shall provide that the Borough be given not less than 30 days' prior written notice in the event of modification, cancellation, or nonrenewal of the insurance coverage and 10 days in the event of non-payment of premium. On or before the renewal date of said policy, carrier shall be required to provide the Borough with a Certificate of Insurance indicating the continuation of insurance coverage.

Copies required. The carrier shall provide copy of certificates of insurance reflecting the requirements of this section to the Borough within 10 days following zoning approval and prior to obtaining a construction permit.

Indemnification. Prior to constructing a facility in the public rights-of­way, and as a precondition to the issuance of a permit pursuant to this article, the carrier shall execute the Master License Agreement, agreeing, among other things, to the fullest extent permitted by law, to save harmless and defend the Borough, its elected and appointed officials, its employees, agents, volunteers and others working on behalf of the Borough, from and against any and all claims, losses, costs, attorney's fees, damages, or injury including death and/or property loss, expense claims or demands arising out of the Agreement or Carrier's use of the Borough's property, including all suits or actions of every kind or description brought against the Borough, either individually or jointly with Carrier for or on account of any damage or injury to any person or persons or property, caused or occasioned or alleged to have been caused by, or on account of, any of the activities conducted by or caused to be conducted, or equipment or Facilities installed by Carrier, or through any negligence or alleged negligence in safeguarding Borough property, or members of the public, or through any act, omission or fault or alleged act, omission or fault or alleged act, omission or fault of the Carrier, its employees, agents, volunteers, subcontractors or others under the direction, control or under any contractual relationship with the Carrier. The Borough will provide the carrier with prompt, written notice of any claim covered by this indemnification; provided that any failure of the Borough to provide any such notice, or to provide it promptly, shall not relieve the carrier from its indemnification obligation in respect of such claim. The Borough shall cooperate with the carrier in connection with the carrier's defense of such claim. The carrier shall defend the Borough, at the Borough's request, against any claim with counsel of the Borough's choosing that is reasonably satisfactory to the carrier.

Right to revoke permit. The Zoning Officer may revoke or suspend a permit issued pursuant to this article for one or more of the following reasons:

Notice of revocation or suspension. The Zoning Officer shall send written notice of its intent to revoke or suspend a permit issued pursuant to this section stating the reason or reasons for the revocation or suspension and the alternatives available to carrier under this subsection.

Carrier alternatives upon receipt of notice of revocation or suspension. Upon receipt of a written notice of revocation or suspension from the Zoning Officer, the carrier shall have the following options:

Notice. Within 30 days following written notice from the Borough, any carrier with facilities in the public rights-of-way shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any facilities whenever the Borough determines that a) such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any Borough improvement in or upon the public rights-of-way; or b) because the equipment is interfering with or adversely affecting proper operation of the light or other poles; or c) the widening of the public rights-of-way. In such instance, the Borough shall cooperate with carrier to find a replacement location for the facility that will provide similar radio frequency coverage to the facility removed or relocated.

Removal of unauthorized facilities. Within 30 days following written notice from the Zoning Officer to any carrier that owns, controls, or maintains any unauthorized facility or related appurtenances within any public rights-of-way, said carrier shall, at its own expense, remove all or any part of such facilities or appurtenances. A facility is unauthorized and subject to removal, but not limited to, in the following circumstances:

Upon abandonment of the facility.

General maintenance. Facilities within public rights-of-way shall be maintained by or for the carrier at the carrier's sole expense. Carrier shall not damage the public rights-of-way and shall keep them free of all debris. If any portion of the public rights-of-way suffers damage by reason of access by carrier, then in that event the carrier, at its sole cost and expense, shall immediately repair all such damage or replace the damaged portion of the public rights-of-way and restore the damaged portion of the property to its condition prior to the occurrence of such damage.

Emergency maintenance procedures. The noncompliance with normal procedures for securing a required permit shall be excused when a carrier reasonably determines that an emergency exists, in which event the carrier shall comply with the following procedures:

Nothing in this section shall be construed as limiting any additional or further remedies that the Borough may have for enforcement of this article.

For violation of any provision of this article, the maximum penalty shall, upon conviction of a violation, be a fine not exceeding $2,000 or imprisonment for a period not exceeding 90 days, or both.