Any conditional use permit issued pursuant to this article shall be comprehensive
and not severable. If part of a permit is deemed or ruled to be invalid
or unenforceable in any material respect by a competent authority,
or is overturned by a competent authority, the permit shall be void
in total, upon determination by the Board.
For purposes of this article, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations, shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number, and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
ACCESSORY FACILITY OR STRUCTURE
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities or complexes
and located on the same property or lot as the wireless telecommunications
facilities or complexes, or an immediately adjacent lot including,
but not limited to, utility or transmission equipment storage sheds
or cabinets.
AMEND, AMENDMENT and AMENDED
Means and shall relate to any change, addition, correction,
deletion, replacement or substitution, other than typographical changes
of no effect.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for
a conditional use permit or other approval for wireless telecommunications facilities.
APPLICATION
All necessary and required documentation that an applicant
must submit in order to receive a conditional use permit or a building permit or other approval for wireless telecommunications
facilities.
BOARD
The Planning Board of the Village of Old Brookville.
[Amended 1-23-2017 by L.L. No. 1-2017]
CERTIFICATE OF COMPLETION or COC
A required document issued by the Village that confirms that
all work represented in the application:
B.
Was done in compliance with and fulfilled all conditions of
all permits, including any final completion deadline;
C.
Was fully constructed as approved and permitted; and
D.
A final inspection was requested, conducted and the facility
or complex passed the final inspection.
CO-LOCATION
One telecommunications site hosting multiple separate facilities.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone and for a single site,
shall not deem a situation to be "commercially impracticable" and
shall not render an act or the terms of an agreement "commercially
impracticable."
COMPLETED APPLICATION
An application that contains all necessary and required information
and/or data necessary to enable an informed decision to be made with
respect to an application. Where any information is provided pursuant
to the terms of this article and the Building Inspector or the Village's
expert or consultant or the Board determines, based upon information
provided, that further or clarifying information is needed as to one
or more aspects, then the application will not be deemed complete
until that further or clarifying information is provided to the satisfaction
of the Building Inspector or the Village's expert or consultant or
the Board.
COMPLEX
The entire site or facility, including all structures and
equipment located at the site.
DAS or DISTRIBUTIVE ANTENNA SYSTEM
An antenna combining technology whereby low-power NIER emanates
from multiple facilities, each covering a limited range, and also
allowing for multiple carriers or wireless service providers to use
the same set of antennas, cabling and equipment.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FACILITY
A set of wireless transmitting and/or receiving equipment,
including any associated electronics and electronics shelter or cabinet
and generator.
FCC
The Federal Communications Commission or its duly designated
and authorized successor agency.
HEIGHT
When referring to a tower or wireless telecommunications
structure, the distance measured from the preexisting grade level
to the highest point on the tower or structure, even if said highest
point is an antenna or lightning-protection device.
IN-KIND REPLACEMENT
Replacing a component(s) that is malfunctioning with a properly
functioning component of substantially the same weight and dimensions
and that does not enable an increase or potential increase in revenue
for the service provider or increase the compensation paid to the
owner or manager of the telecommunications structure.
MAINTENANCE or ROUTINE MAINTENANCE
Plumbing, electrical or mechanical work that may require
a building permit but that does not constitute a modification to the
WTF. It is work necessary to assure that a wireless facility and/or
telecommunications structure exists and operates: reliably and in
a safe manner; presents no threat to persons or property; and remains
compliant with the latest editions and amendments of all applicable
laws, codes, rules and regulations, but does not change the number,
types or levels of service provided and is not done for the purpose
of enabling increased revenue for the wireless service provider or
the owner or manager of the telecommunications structure.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernible components, colors or aspects of a wireless facility
or complex with substantially identical components, including but
not limited to antennas, cabling, equipment shelters, landscaping,
shrouding, fencing, utility feeds, color or materials of any visually
discernible components, vehicular access, parking and/or an upgrade
or change-out of equipment for better or more modern equipment or
component(s). Adding a new antenna, wireless carrier or service provider
to a telecommunication tower or telecommunication site as a co-location
is always a modification.
MUNICIPAL FACILITIES
Village-owned street lamps, streetlight poles, lighting fixtures,
electroliers, flagpoles, and other similar Village-owned structures.
[Added 4-18-2016 by L.L.
No. 1-2016]
MUNICIPAL PROPERTY
Village-owned buildings, and the space in, upon, above, along,
across, and over real property that is under the sole ownership, jurisdiction,
possession and control of the Village (except property leased or licensed
to or by the Village); any property where the Village holds an easement
or other beneficial interest; public right-of-way; and underwater
lands.
[Added 4-18-2016 by L.L.
No. 1-2016]
NECESSARY or NECESSITY or NEED
What is technologically required for the equipment to function
as designed by the manufacturer, and that anything less will result
in prohibiting the provision of service as intended and described
in the narrative of the application. "Necessary" or "need" does not
mean what may be desired, preferred or the most cost-efficient approach
and is not related to an applicant's specific chosen design standards.
Any situation involving a choice between or among alternatives or
options is not a need or a necessity.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
PUBLIC RIGHTS-OF-WAY
The space, in, upon, above, along, across, and over the public
streets, roads, highways, lanes, courts, ways, alleys, sidewalks,
and similar places, including public utility easements and public
service easements that are under the jurisdiction and exclusive control
of the Village. The term shall not include county, state, or federal
rights-of-way or places owned by the Village jointly with another
person or entity.
REPAIRS
The replacement or repair of any components of a wireless
facility or complex where the replacement is substantially identical
and expressly not merely similar or functionally equivalent to the
component being replaced, or for any matters that involve the normal
repair and maintenance of a wireless facility or complex without the
addition, removal or change of any of the physical or visually discernible
components or aspects of a wireless facility or complex that will
impose new visible intrusions of the facility or complex as originally
permitted.
SPECIAL USE PERMIT
The official document or permit granted by the Planning Board
pursuant to which an applicant is allowed to file for and obtain a
building permit to construct and use a facility or complex as granted
or issued by the Board.
[Added 1-23-2017 by L.L.
No. 1-2017]
STATE
The State of New York.
STEALTH or STEALTH TECHNOLOGY
A design or treatment that minimizes adverse aesthetic and
visual impacts on the land, property, buildings, and other facilities
adjacent to, surrounding, and in generally the same area as the requested
location of such wireless telecommunications facilities, which shall
mean building the least visually and physically intrusive facility
and complex that is not technologically or commercially impracticable
under the facts and circumstances. Stealth technology includes such
techniques as DAS or its functional equivalent or camouflage where
the tower is disguised to make it less visually obtrusive and not
recognizable to the average person as a wireless facility or complex.
STRUCTURAL CAPABILITY or STRUCTURAL CAPACITY
Notwithstanding anything to the contrary in any other standard,
code, regulation or law, 100% of the designed loading and stress capability
of the telecommunications structure under all conditions of wind,
ice, snow or accidental collisions or other physical stress which
may occur under the worst expected conditions.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TEMPORARY
Not permanent in relation to all aspects and components of
this article, something intended to, and that does, exist for fewer
than 90 days.
TOWER
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
VILLAGE
The Incorporated Village of Old Brookville.
WIRELESS TELECOMMUNICATIONS FACILITY or FACILITIES (WTF or WTFS)
or COMPLEX
Includes a "telecommunications site," "telecommunications
structure," and "personal wireless facility site." It means a specific
location at which a structure that is designed, or intended to be
used to house or accommodate antennas or other transmitting or receiving
equipment is located. This includes, without limitation, towers of
all types and kinds and support structures, including but not limited
to buildings, church steeples, silos, water towers, signs, utility
poles or other any other structure that is used or is proposed to
be used as a telecommunications structure for antennas or the functional
equivalent of such. It expressly includes all related facilities and
equipment such as cabling, radios and other electronic equipment,
equipment shelters and enclosures, cabinets and other structures enabling
the complex to provide, though not limited to, radio, television,
cellular, SMR, paging, 911, personal communications services (PCS),
commercial satellite services, microwave services and any commercial
wireless telecommunication service licensed by the FCC or not.
[Amended 4-18-2016 by L.L. No. 1-2016]
All fees and charges, including but limited to application fees,
expert or consulting fees, attorney fees, inspection fees and permit
fees, shall be as set forth in the Village's Fee Schedule.
The following shall be exempt from this article:
A. Any facility operated by or on behalf of any unit of government for
public or municipal purposes.
B. Any facilities expressly or implicitly exempt from the Village's
zoning, land use, siting, building or permitting authority under law
or controlling legal precedent.
C. Any reception or transmission devises expressly exempted under the
Telecommunications Act of 1996.
D. Any facility used exclusively for private, noncommercial radio and
television reception and private citizen's bands, licensed amateur
radio and other similar noncommercial telecommunications that are
less than 100 feet above ground.
E. Facilities used exclusively for providing unlicensed spread spectrum
technologies where:
(1) There is no charge for the use of the wireless service;
(2) The facility or complex does not require a new tower or increase
the height of the structure being attached to; and
(3) The service is not intended to be useable more than 100 feet from
the antenna(s).
All facilities shall be located, fenced or otherwise secured
in a manner that prevents unauthorized access. Specifically:
A. All facilities, including antennas, towers and other supporting structures,
including all guy anchors points and guy wires, shall be made inaccessible
to unauthorized individuals and shall be constructed or shielded in
such a manner that they cannot be climbed or collided with; and
B. Transmitters and telecommunications control points shall be installed
so that they are readily accessible only to persons authorized to
operate or service them.
Facilities shall contain a sign no larger than four square feet
and no smaller than two square feet in order to provide adequate warning
to persons in the immediate area of the presence of RF radiation.
A sign of the same size is also to be installed bearing the name(s)
of the owner(s) and operator(s) of the antenna(s) as well as emergency
phone number(s). The sign shall be on the equipment shelter or cabinet
of the applicant and must be visible from the access point of the
facility or complex and must identify the equipment owner of the shelter
or cabinet. On tower sites, an FCC registration sign, as applicable,
is also to be present. The signs shall not be lighted, unless applicable
law, rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
[Amended 4-18-2016 by L.L. No. 1-2016]
A. All proposed towers and any other proposed wireless support structures, except utility poles, shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the greater of the following distances: a distance equal to two times the height of the proposed tower or telecommunications structure, otherwise known as the "fall zone," or the existing setback requirement of the underlying zoning district, whichever is greater. Any accessory structure shall be located within the fenced compound area, or as required under §
300-45 of this article, as approved in the special use permit and so as to comply with the applicable minimum setback requirements for the property on which it is situated. The fall zone shall be measured from the center line of the tower to the nearest portion of the right-of-way or any public road or thoroughfare and any occupied building or domicile, as well as any property boundary lines. Further, the nearest portion of any access road leading to a facility shall be no less than 10 feet from the nearest property line.
[Amended 1-23-2017 by L.L. No. 1-2017]
B. There shall be no development of habitable buildings within the setback
area or fall zone.
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
All applicants for a special use permit for a new wireless facility
or complex, including for a new tower or other telecommunications
structure or that constitutes a modification, shall comply with the
requirements set forth in this section. In addition to the required
information set forth in this section, all applications for the construction
or installation of a new facility or complex, or that increases the
height of an existing structure, shall contain the information hereinafter
set forth prior to the issuance of a building permit.
A. Ownership and management.
(1) The name, address and phone number of the person preparing the application;
(2) The name, address, and phone number of the property owner and the
applicant, including the legal name of the applicant. If the owner
of the structure is different than the applicant, the name and all
necessary contact information shall be provided;
(3) The postal address and Tax Map parcel number of the property;
(4) A copy of the FCC license applicable for the intended use(s) of the
wireless telecommunications facilities, including all FCC licensed
frequency bands;
(5) The applicant shall disclose in writing any agreement in existence
that would limit or preclude the ability of the applicant to share
any new telecommunication tower that it constructs or has constructed
for it.
B. Zoning and planning.
(1) The zoning district or designation in which the property is situated;
(2) The size of the property footprint on which the structure to be built
or attached is located, stated both in square feet and lot line dimensions,
and an up to date guaranteed survey showing the location of all lot
lines;
(3) The location, size and height of all existing and proposed structures,
enclosures and cabinets on the property on which the structure is
located and that are in any way related to the subject of the application;
(4) A certified site plan drawn to scale, prepared by a licensed engineer,
architect or surveyor and not a hand-drawn sketch, showing a vertical
drawing of the tower or other telecommunications structure identifying
all attachments by owner and the height of such, the footprint of
the telecommunications structure and the type, location and dimensions
of access drives, landscaping and buffers, fencing and any other requirements
of site plans;
(5) Elevation drawings showing the profile or the vertical rendition
of the tower or telecommunications structure at the facility or complex
and identifying all existing and proposed attachments, including the
height above the preexisting grade of each attachment and the owner
or operator of each, as well as all lighting;
(6) The type and design of the tower or telecommunications structure,
the number of antenna arrays proposed to be accommodated and the basis
for the calculations of the tower's or telecommunications structure's
structural capacity to accommodate the required number of antenna
arrays for which the structure must be designed;
(7) Disclosure in writing of any agreement in existence prior to the
submission of the application that would limit or preclude the ability
of the applicant to share any new telecommunication tower that it
constructs;
(8) A certified statement of: the total cost of construction for the
work associated with the application; and the total cost of all equipment
of the applicant at the facility. To verify the accuracy of the information,
the Board reserves the right to require copies of applicable invoices
or other clear and convincing corroborating evidence.
C. Safety.
(1) The age of the tower or telecommunications structure and complex
stated in years, including the date of the grant of the original permit.
(2) A description of the type of tower, e.g. guyed, self-supporting lattice
or monopole, or other type of telecommunication structure.
(3) The make, model, type and manufacturer of the tower and the structural
design analysis and report, including the calculations, certified
by a professional engineer licensed in the state and proving the tower
or telecommunication structure's capability to safely accommodate
the facilities of the applicant without change or modification.
(4) If a co-location, change or modification of a facility or complex
is needed, a detailed narrative explaining what changes are needed
and why they are needed. This includes a complete list of all equipment
and facilities proposed to be removed and all equipment proposed to
be added.
(5) A complete, unredacted copy of the foundation design and report for
the tower or other structure, including a geotechnical subsurface
soils investigation report and foundation design.
(6) If modifying or co-locating on an existing tower or other telecommunication
structure, a complete, unredacted and certified TIA ANSI 222 report
regarding the physical condition of the complex and its components
done within the previous six months. If such report has not been done
within the previous six months, one shall be done and submitted as
part of the application. No building permit shall be issued for any
wireless facility or related equipment where the structure being attached
to is in need of remediation to comply with the requirements of this
subsection and other adopted standards of the Village, unless and
until all remediation work that is deemed needed has been completed
or a schedule for the remediation work has been approved by the Building
Inspector.
(7) In an instance involving a tower with only a single array of antennas,
or for the first antenna array to be attached to a tower where the
array will be 10 meters or more above ground level and not within
100 feet of areas to which the public has or could reasonably have
or gain access to, signed documentation in the form of the FCC's "Checklist
to Determine Whether a Facility May Be Categorically Excluded" shall
be provided to verify that the facility and complex with the proposed
installation will be in full compliance with the FCC's current RF
emissions regulations.
(8) In certain instances, the Board may deem it appropriate to have an
on-site RF survey of the facility or complex performed after the construction
or modification and activation of the facility or complex, to be performed
under the direction of the Village or its designee, and an unredacted
copy of the survey results provided, along with all calculations,
prior to issuance of a certificate of compliance.
(9) If not previously submitted, a signed statement that the applicant
will expeditiously remedy any physical or RF interference with other
telecommunications or wireless devices or services.
(10)
A written copy of an analysis completed by a qualified individual
or organization to determine if the proposed wireless telecommunications
facility or complex is in compliance with Federal Aviation Administration
Regulation Part 77, and if it requires lighting. Unless already lighted,
this requirement shall also be for any facility or complex where the
application proposes to increase the height of the tower or telecommunications
structure. If this analysis determines that an FAA determination is
required, then all filings with the FAA, all responses from the FAA
and any related correspondence shall be provided with the application.
(11)
All applications for a proposed facility or complex applicable
to this section shall contain clear and convincing evidence that the
facility or complex is sited and designed so as to create the least
visual intrusiveness reasonably possible given the facts and circumstances
involved, and thereby will have the least adverse visual effect on
the environment and its character, on existing vegetation, and on
the nature and character of the community in the area of the facility
or complex. To achieve this goal, the Board expressly reserves the
right to require the use of stealth or camouflage siting techniques
such as, but not limited to, DAS (distributive antenna system) siting
techniques or a functional equivalent siting technique, and such shall
be subject to approval by the Board.
(12)
If proposing a new tower or telecommunications structure, or
if increasing the height of an existing structure or the size of the
profile, the applicant shall be required to submit clear and convincing
evidence that there is no alternative solution within 1/2 mile of
the proposed site that would be less visually intrusive and that not
to permit the proposed new tower or telecommunications structure,
or a co-location or modification would result in the prohibition of
service or the perpetuation of a significant gap in service primarily
within the Village.
(13)
In order to better inform the public, in the case of a new tower,
the applicant shall conduct a "balloon test" prior to the initial
public hearing on the application. The applicant shall arrange to
fly, or raise upon a temporary mast, a minimum of a 10 feet in length
brightly colored balloon at the maximum height of the proposed new
tower.
(14)
At least 14 days prior to the conduct of the balloon test, a
sign shall be erected so as to be clearly visible from the road nearest
the proposed site and shall be removed no later than 14 days after
the conduct of the balloon test. The sign shall be at least four feet
by eight feet in size and shall be readable from the road by a person
with 20/20 vision. Such sign shall be placed off, but as near to,
the public right-of-way as is possible. And shall contain the times
and date(s) of the balloon test and contact information.
(15)
The dates (including a second date, in case of poor visibility
or wind in excess of 15 mph on the initial date), times and location
of this balloon test shall be advertised by the applicant seven and
14 days in advance of the first test date in the official newspaper
of the Village. The applicant shall inform the Board in writing of
the dates and times of the test at least 14 days in advance. The balloon
shall be flown for at least four consecutive hours between 10:00 a.m.
and 2:00 p.m. on the dates chosen. The primary date shall be on a
weekend, but the second date, in case of poor visibility on the initial
date, may be on a weekday. A report with pictures from various locations
of the balloon shall also be provided with the application.
(16)
The applicant shall notify all property owners and residents
located within 1,500 feet of the nearest property line of the subject
property of the proposed construction of the tower and facility or
complex and of the date(s) and time(s) of the balloon test. Such notice
shall be provided at least 14 days prior to the conduct of the balloon
test and shall be delivered by first-class mail.
(17)
The wireless telecommunications facility or complex shall be
structurally designed to accommodate at least four antenna arrays,
with each array to be flush mounted or as close to flush-mounted as
is reasonably possible.
(18)
The applicant shall provide certified documentation in the form
of a structural analysis and report, including all supporting calculations,
showing that the facility or complex will be constructed to meet all
local, state and federal structural requirements for loads, including
wind and ice loads and including, but not limited to all applicable
ANSI (American National Standards Institute) TIA 222 guidelines. In
the event of a conflict, the more stringent shall apply.
(19)
The applicant shall furnish a visual impact assessment, which
shall include:
(a)
Computer-generated "Zone of Visibility Map" at a minimum of
one-mile radius from the proposed structure shall be provided to illustrate
locations from which the proposed installation may be seen, with and
without foliage;
(b)
Pictorial representations (photo simulations) of "before and
after" views from key viewpoints inside of the Village, as may be
appropriate and required, including but not limited to state highways
and other major roads, state and local parks, other public lands,
historic districts, preserves and historic sites normally open to
the public, and from any other location where the site is visible
to a large number of visitors, travelers or residents. Guidance will
be provided concerning the appropriate key viewpoints at the preapplication
meeting. In addition to photographic simulations to scale showing
the visual impact, the applicant shall also provide a map showing
the locations of where the pictures were taken and the distance(s)
of each location from the proposed structure;
(c)
The applicant shall provide a description in writing and a visual
rendering demonstrating how it shall effectively screen from view
the bottom 15 feet of the facility or complex and all related equipment
and structures associated with the facility or complex.
(20)
A building permit shall not be issued for construction of a
new tower or other telecommunications structure until there is an
application for or by a specific carrier that documents that the facility
or complex is necessary for that carrier to serve the community and
that co-location on an existing structure is not feasible.
(21)
Co-location on an existing structure is not reasonably feasible
if technically or commercially impractical or the owner of the structure
is unwilling to enter into a contract for such use at or below fair
market value. Sufficient documentation in the form of clear and convincing
evidence to support such claims shall be submitted with an application
for the first carrier in order to determine whether co-location on
existing structures is reasonably feasible and to document the need
for a specific stated height, and that less height will serve to prohibit
or have the effect of prohibiting the provision of service.
[Amended 4-18-2016 by L.L. No. 1-2016; 1-23-2017 by L.L. No. 1-2017]
A. The Board may retain any consultant and/or expert necessary to assist
the Board in reviewing and evaluating the application, including the
construction and modification of the site, once permitted, and any
site inspections. To prevent taxpayers from having to bear the costs
and expenses related to the permitting and regulating of wireless
telecommunications facilities, the applicant shall pay to the Village
a fee(s) as set forth in the Village's Fee Schedule. The fee(s)
is intended to cover all the costs and expenses of the expert or consultant
and attorneys' fees in connection with the review of any application
or the permitting, inspection, construction or modification requested
under this article.
B. Timing of payment. The payment of the expert or consultant fees to
the Village shall precede any work being done related to the intended
application, including but not limited to a site visit, preapplication
meeting or discussions or inquiries initiated by the applicant.
C. Review prior to the formal submittal of the application. The expert
or consultant costs for any review of an application or any portion
thereof that is requested by the applicant prior to the formal submittal
of the application shall be paid for by the applicant and shall be
separate and apart from the cost for expert or consultant assistance
related to the formal review of the application.
D. Amended or changed application. If an application is amended or changed
after its formal submittal at any time prior to the grant of the permit
or approval required under this article, the Board reserves the right
to require additional payment for review and analysis equal to, but
not exceeding, the cost incurred by the Village by the amendment of
the application. Such amount shall be paid to the Village prior to
the issuance of the special use permit, any building permit or any
other required permit or approval.
E. Relief or waiver request. The cost of expert or consulting assistance
to the Village related to work associated with a request for relief
or waiver after the initial submittal of an application shall be paid
for by the applicant and shall not count toward the fee cap.
F. Lease negotiations. The intended lessee shall pay all costs of the
Village's expert assistance incurred for lease negotiations.
The cost for the Village's expert assistance for lease negotiations
is and shall be separate and apart from an application review for
any permit, and shall be required to be paid for by the requesting
lessee prior to the start of any work related to the intended lease
negotiations.
G. Qualifications. The Village may hire any consultant of its choice
to assist the Village in reviewing and evaluating applications, provided
the consultant has at least five years' experience working exclusively
for the public sector regulating towers and wireless facilities and
negotiating leases for such facilities and has reviewed at least 500
applications.
H. The total amount of the funds needed for expert or consulting assistance
as set forth in the Village's Fee Schedule may vary with the
scope and complexity of the application, the completeness of the application
and other information as may be needed to complete the necessary review,
analysis and inspection of any construction or modification or the
amount of time spent responding to an applicant's arguments as
regards its application or the requirements of this article.
I. The Village will maintain an accounting for the expenditure of all
such funds.
[Amended 1-23-2017 by L.L. No. 1-2017]
The extent and parameters of a special use permit or administrative
authorization for a facility or complex shall be as follows:
A. Such special use permit or administrative authorization shall not
be assigned, transferred or conveyed without the express prior written
notification to the Village, such notice to be not fewer than 30 business
days prior to the intended assignment, transfer or conveyance.
B. A transfer, assignment or other conveyance of the special use permit
or administrative authorization shall require the written commitment
of the proposed new holder of the special use permit or administrative
authorization to abide by all applicable laws, rules and regulations,
including but not limited to this article.
C. Following notice and an opportunity to cure, a special use permit
granted under this article may be revoked, canceled or terminated
for a violation of the conditions and provisions of the special use
permit or other applicable law, rule, regulation or order, and if
warranted, the payment of a fine(s) as is permissible.
D. If a violation is not cured within the time frame set forth in the
notice of violation, a hearing shall be held upon due prior notice
to the applicant citing the violation and the date, time and place
of the hearing, which shall be provided by registered mail to the
last known address of the holder of the special use permit.
E. Following the original notice and an opportunity to cure, subsequent
or repeated violations of a substantially similar nature shall be
deemed a pattern of misbehavior and not require an opportunity to
cure prior to the imposition of fines or penalties.
[Amended 1-23-2017 by L.L. No. 1-2017]
Prior to the issuance of any building permit, the applicant
and the owner of record of any proposed new tower or other telecommunications
structure or complex shall, at its sole cost and expense, be jointly
required to execute and file with the Village a bond or other form
of security that is acceptable to the Village Attorney as to the type
of security and the form and manner of execution, in an amount of
at least $75,000 for a tower or other telecommunications structure
and with such sureties as are deemed adequate by the Village Attorney
to assure the faithful performance of the requirements of this article
and conditions of any special use permit issued pursuant to this article.
The full amount of the bond or security shall remain in full force
and effect throughout the term of the special use permit and/or until
any necessary site restoration is completed to restore the site to
a condition comparable to that which existed prior to the issuance
of the original special use permit.
[Amended 1-23-2017 by L.L. No. 1-2017]
If a telecommunications structure, facility or complex is repaired,
rebuilt, placed, moved, relocated, modified or maintained in a way
that is inconsistent or not in compliance with the provisions of this
article or of the special use permit or any other required permit
or approval, then the Village shall notify the holder of the special
use permit or other required permit or approval in writing of such
violation. A special use permit or any other permit or approval holder
found to be in violation may be considered in default and subject
to fines as provided in this article; and if a violation is not corrected
to the satisfaction of the Village in a reasonable period of time,
the special use permit or other required permit or approval shall
be subject to revocation.
If attached to an existing tower or other telecommunications
structure, unless the Board deems doing so to be in the public interest,
it shall be impermissible for a wireless service provider's or carrier's
equipment to be relocated from one structure to another without clear
and convincing evidence that not to do so would, for technical reasons,
prohibit or serve to prohibit the provision of service in the service
area served by the existing wireless facility.
A. If the lease for the existing co-location expires and is not renewed,
thereby forcing the facility to be moved, such move shall be allowed
upon: the provision of clear and convincing evidence satisfactory
to the Board of the need to move or relocate the Facility; and clear
and convincing evidence satisfactory to the Board of the lack of impact
on the neighborhood or area of intended new location. Cancellation
or abandonment of a lease by a lessee shall not be deemed a permissible
reason for relocating.
B. The owner of any facility or complex shall be required to provide
a minimum of 60 days prior written notice to the Village Clerk prior
to abandoning any facility or complex and shall bear the costs of
removal and restoration of the sites of the complex to their original
condition, the costs of which shall be bonded in the event the owner/operator
does not remove restore the areas of the installation or transfer
the ownership and obligations to another entity under this article.
C. Under the following circumstances, the Village may determine that
the health, safety and welfare interests of the Village warrant and
require the removal of facilities.
(1) A facility or complex that has been abandoned (i.e., not used as
wireless telecommunications facilities) for a period exceeding 90
consecutive days or a cumulative total of 180 nonconsecutive days
in any three-hundred-sixty-five-day period, except for periods caused
by force majeure or Acts of God, in which case, repair or removal
shall be completed within 90 days of abandonment.
(2) A telecommunications structure or facility or complex falls into
a state of disrepair as to create a health or safety hazard or is
deemed an attractive nuisance or a visual blight.
(3) A telecommunications structure or facility or complex has been located,
constructed or modified without first obtaining, or in a manner not
authorized by, the required special use permit, or any other necessary
permit or approval and the special use permit or any other necessary
permit or approval has been revoked as provided in this article.
[Amended 1-23-2017 by L.L. No. 1-2017]
(4) If the Village makes such a determination under this section, then
the Village shall notify the holder of the special use permit or any
other necessary permit or approval for the facility or complex in
writing that said facility or complex is to be removed.
[Amended 1-23-2017 by L.L. No. 1-2017]
(5) The holder of the special use permit or any other necessary permit
or approval, its successors or assigns, shall dismantle and remove
such facility or complex and all associated structures and equipment
from the site and restore the site to as close to its original condition
as is possible, such restoration being limited only by physical or
commercial impracticability. Restoration shall be completed within
90 days of receipt of written notice from the Village. However, if
the owner of the property upon which the facility or complex is located
wishes to retain any access roadway to the facility or complex, the
owner may do so with the approval of the Board.
[Amended 1-23-2017 by L.L. No. 1-2017]
(6) If a facility or complex has not been removed within 90 days after
the permit holder has received written notice from the Village, then
the Village may order officials or representatives of the Village
to remove the facility or complex at the sole cost and expense of
the owner and the special use permit or any other necessary permit
or approval holder, dispose of the equipment as it sees fit and charge
a tax lien against the property on which the structure(s) are situated
to cover all of the Village's cost and expenses, including attorney
fees.
[Amended 1-23-2017 by L.L. No. 1-2017]
(7) If the Village removes, or causes facilities to be removed, and the
owner of the facility or complex does not claim and remove it from
the site to a lawful location within 10 days, then the Village may
take steps to declare the facility or complex abandoned, and sell
them and their components.
(8) Notwithstanding anything in this article to the contrary, the Village
may approve a temporary use permit/agreement for the facility or complex
for no more than 90 days' duration, during which time a suitable
plan for removal, conversion or relocation of the affected facility
or complex shall be developed by the holder of the special use permit,
subject to the approval of the Village, and an agreement to such plan
shall be executed by the holder of the special use permit or other
approval and the Village. If such a plan is not developed, approved
and executed within the ninety-day time period, then the Village may
take possession of and dispose of the affected facility or complex
in the manner provided in this article and utilize the bond as provided
for in this article.
[Amended 1-23-2017 by L.L. No. 1-2017]
To assure the protection of the public health and safety, unless
expressly prohibited by state or federal law, the Village expressly
reserves the right to require that an applicant, a user of a facility
or complex or the owner of the facility or complex verify compliance
with the FCC's regulations regarding RF emissions as may be deemed
appropriate from time to time, and that all users of the facility
or complex cooperate with the party responsible for such verification.
Failure to cooperate shall be deemed a violation of this article and
subject the non-cooperating party to all fines and other remedies
at law or in equity and shall further be deemed cause for the Village
to call upon the services of the U.S. Department of Labor's Occupational
Safety and Health Administration (OSHA) to make a determination.
A. With respect to telecommunications structures other than towers,
if any section or portion of the structure to be attached to or area
within 100 feet of such, is not in compliance with the FCC's regulations
regarding RF radiation, that section or portion must be barricaded
with a suitable barrier to discourage approaching into the area in
excess of the FCC's regulations, and be marked off with brightly colored
plastic chain or striped warning tape as appropriate, as well as placing
RF radiation signs as needed and appropriate to warn individuals of
the potential danger.
[Amended 1-23-2017 by L.L. No. 1-2017]
A. To the extent that the holder of a special use permit or any other
necessary permit or approval for a wireless telecommunications facility
or complex has not received relief, or is otherwise exempt, from appropriate
state and/or federal agency rules or regulations, then the holder
of such a special use permit, permit or approval shall adhere to,
and comply with, all applicable rules, regulations, standards and
provisions of any state or federal agency, including but not limited
to the FAA and the FCC. Specifically included in this requirement
are any rules and regulations regarding height, lighting, security,
electrical and RF emission standards.
B. To the extent that applicable rules, regulations, standards and provisions
of any state or federal agency, including but not limited to the FAA
and the FCC, and specifically including any rules and regulations
regarding height, lighting and security, are changed and/or are modified
during the duration of a special use permit or any other necessary
permit or approval for wireless telecommunications facilities, then
the holder of such a special use permit or other permit or approval
shall conform the permitted facility or complex to the applicable
changed and/or modified rule, regulation, standard or provision within
a maximum of 24 months of the effective date of the applicable changed
and/or modified rule, regulation, standard or provision, or sooner,
as may be required by the issuing entity.
This article is enacted as a local law under the Municipal Home
Rule Law, pursuant to applicable authority granted by the State and
federal governments.