BELMAR — The borough council enacted new rules last week regarding cell nodes on utility poles along the boardwalk, as a case in federal court between Belmar and Verizon wireless on the matter continues to play out.
Ordinance 2021-15 was introduced May 18 and adopted unanimously by members of the borough council last Tuesday. The new rules stipulate that utility poles constructed by cellular providers would need to conceal or disguise any small wireless facilities, as well as allow for multiple occupants and allow space for municipal use and equipment. That means Verizon would not be the sole cellular carrier allowed to use the utility pole.
Under the new borough ordinance, companies looking to install small wireless facilities in any right of way in Belmar must first file a permitting application with the borough clerk. The applicant would then need to accept a right-of-way agreement with the borough, according to the newly approved ordinance, and the borough council has to agree on the siting permit.
The Verizon cell nodes would also need to be located 200 feet apart from each other, unless “it can be established by clear and convincing evidence that co-location on an existing or previously approved Small Wireless Facility is not feasible,” according to the ordinance.
Small wireless facilities must be constructed on a smart pole, defined by the ordinance as a pole designed to accommodate up to three cell node facilities at a time, with pre-approved smart poles described in the new rule.
Cellco Partnership, doing business as Verizon Wireless, has alleged in a complaint filed in the federal District Court in Trenton that its application to install the facilities – a minor land-use application with a list of the 19 proposed facilities complete with engineering plans, foundation design analysis, electromagnetic exposure certifications, photo simulations and radio frequency reports and network coverage map – was held up by the borough. The Federal Communications Commission gives municipalities 90 days to rule on granting cell companies the right to construct cell facilities.
The 90-day period ended on April 13, but a tolling agreement passed by the borough council last month would allow the borough and Cellco Partnership to settle the dispute despite time running out.
The Telecommunications Act of 1996 set rules and regulations in order to “accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans,” according to the suit, including limitations on state and local governments when it comes to the time it takes to approve proposals from wireless providers.
In 2009, the FCC issued the 2009 Shot Clock Order, which was revised in 2018, which gave local authorities 60 days to act on proposals for small wireless facilities on pre-existing structures and 90 days if a proposal includes the attachment of a small wireless facility using a new structure.
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