(A)
Municipal Facilities and Municipal Property. Applications for a license agreement to erect, install, attach, deploy, operate, maintain, alter, or Modify Wireless Telecommunications Facilities in, over or upon Municipal Facilities and Municipal Property shall be determined solely by the Town Board or Board of Trustees, as owner thereof, who shall exercise the same authority in reviewing the Application as the Zoning Board of Appeals in Article VI in all respects and without limitation. No site plan approval by the Planning Board shall be required; however, a site plan pre-application shall be completed before building permits will be issued.
(B)
Public Right-of-Ways.
(1)
Applicants for a license agreement to use the Public Right-of-Ways
which also include a request for permission to (a) attach, install,
alter, or maintain Wireless Telecommunication Facilities along the
Public Right-of-Ways on specific poles, streetlights, stanchions and
other similar structures owned by the Town, utility companies or other
entities; or (b) to install utility poles, boxes, cabinets, equipment
or other structures on or partially below ground level at specific
locations along the Public Right-of-Ways, whether or not the structures
are part of a Wireless Telecommunications franchise, shall file an
Application with the Town Board or Board of Trustees, as the case
may be, for a license agreement along with an Application for site
plan pre-application approval before the Planning Board who shall
have jurisdiction to review and approve, on a site-specific basis,
proposed installations of all kinds along the Public Rights-of-Ways.
New Towers in the public rights-of-way shall not be permitted. The
Planning Board shall determine whether federal and state standards,
and the requirements of the Town Code are met for the specific equipment
and locations requested by the Applicant, and may grant or deny, in
whole or in part, with or without conditions, attachments or installations
at such locations it deems advisable during site plan pre-application
review in accordance with state and federal law.
(2)
Subsequent Applications to locate or install additional equipment
or structures, or to Modify existing installations along the Public
Right-of-Ways as described herein once a license agreement is in place
shall continue to be determined by the Planning Board on a case specific
basis during expedited site plan pre-application review. The Planning
Board may grant or deny an Application, in whole or in part, with
or without conditions, as it deems advisable upon site plan pre-application
review in accordance with state and federal law.
(C)
Any Person who fails and/or neglects to file an Application for a
license agreement, or for site plan pre-application approval, and
secure all other necessary approvals and permits before the commencement
of work shall be deemed to be in violation of this Chapter and shall
be subject to the fines and penalties set forth herein.
An original and eleven (11) copies of an Application to the Town Board or Board of Trustees for a license agreement shall be filed in the Office of the Huntington Town Clerk and shall consist of all materials listed in § 194-42. An electronic copy of all documents must also be provided or made available. A nonrefundable Application fee and refundable escrow fee in amounts established by the Town Board shall accompany the Application. The Application fee shall be tripled in all cases where installations have been made or work commenced without the necessary Town approvals or permits. The Town Clerk shall forward copies of the Application to the Town Board, Director of Planning and Environment, Director of Engineering Services, the Town Attorney, and when use of the Public Rights-of-Way is requested, the Superintendent of Highways. The Town Board may refer an Application to other Town agencies or departments for recommendations on any issue it deems necessary and proper. Such referral shall specify the reasons for the referral. Site plan pre-applications to the Planning Board shall contain the materials listed in § 194-45.
(A)
All Applications for a license agreement before the Town Board or
Board of Trustees shall be determined after a public hearing. Applicants
proposing Wireless Telecommunications Facilities shall mail a notice
of public hearing, postmarked no less than ten (10) days before the
hearing to the owners and occupants of all properties located within
five hundred (500) feet of the nearest boundary line of the property
which is the subject of the Application, as shown on the current tax
roll, with the exception of Applications for placement in the R-15,
R-10, R-7 and R-5 zoning districts, where notification to adjoining
property owners and occupants shall be to those within two hundred
(200) feet of the nearest boundary line of the subject parcel, as
shown on the current tax roll. Notice of the public hearing shall
be published by the Town Clerk at least ten (10) days before the hearing
in the official newspaper(s) of the Town.
(B)
Proof of mailing. The Applicant shall provide a certificate of mailing
certified by the United States Postal Service for each recipient that
legibly indicates the name and address of the property owner and occupant
to which notice was mailed. The certificate of mailing shall be filed
by the Applicant in the Office of the Town Clerk along with an affidavit
of mailing no less than five (5) business days before the hearing.
Failure to mail notice of the public hearing or file the certificate
of mailing and affidavit of mailing within the required period shall
result in postponement of the public hearing at the Applicant's cost
and expense which shall include the cost of republishing the notice
of hearing.
(C)
In the case of a site plan pre-application to attach Wireless Telecommunications
Facilities to Municipal Facilities and poles, streetlights, stanchions
and similar structures owned by utility companies or other entities
along the Public Rights-of-Way, or to install cabinets and other structures
at various locations along the Public Rights-of-Way either on or partially
below the ground, the Applicant shall provide notice of the Application
to the owners of all property within one hundred (100) feet of the
proposed Wireless Telecommunications Facility within ten (10) business
days of the date a complete Application is filed. Such notice shall
be mailed by certified mail to the property owners as listed on the
property tax rolls of the Town. The notice shall contain the name
and contact information of the Applicant and Department of Planning
and Environment, the purpose of the Application, the proposed location
of the Wireless Telecommunications Facility, and a description of
the equipment being installed, including a diagram or photograph illustrating
its appearance. Within fifteen (15) business days of the date a complete
Application is filed the Applicant shall deliver to the Department
of Planning and Environment an affidavit of mailing and a copy of
the notice. No public hearing shall be required, but written comments
will be accepted for consideration by the Planning Board.
An Application for a license agreement can be approved or denied,
in whole or in part, with or without conditions as deemed advisable
by the Town Board or Board of Trustees in accordance with state and
federal law. If the Application is approved, in whole or in part,
a license agreement shall be authorized and shall contain the term
of the license; conditions on the use or occupation of the property
or structure(s), including separate compensation, where applicable,
for the use of public rights-of-way, municipal facilities, and municipal
property; provisions for construction and/or performance bonds; indemnity
and insurance; obligations concerning areas disturbed during construction,
installation, attachment or maintenance activities; submission of
annual inventory reports showing the exact location of all installations;
conditions on transfer or assignment; and such other conditions consistent
with the requirements and intent of this chapter that ensures that
the Applicant's use or occupation of public property minimizes disruption
to the public, adheres to all applicable laws, and promotes safe,
effective and efficient use of town resources.
In addition to any other condition or restriction the Town Board
or Board of Trustees deem necessary or advisable under the circumstances,
all approvals, as set forth below, shall include the following conditions,
whether approved by a Board or by operation of law, and whether or
not same is set forth in the Resolution approving the Application.
Any Person who fails and/or neglects to comply with the conditions
of approval shall be deemed to be in violation of this Chapter and
shall be subject to the fines and penalties set forth herein.
(A)
Public Rights-of-Way. In cases where installations are proposed for
along the ground or partially below the ground of the Public Rights-of-Way,
or on poles, streetlights, and stanchions owned by the Town or by
one other than the Town along the Public Rights-of-Way, the following
shall apply.
(1)
Indemnification. To the fullest extent permitted by law, and
whether or not the facilities being approved are wired or wireless,
the Applicant and any successors and assigns, shall indemnify and
hold harmless the Town, its Boards, public officers, employees, servants
and agents, from and against any liability, claims, suits, actions,
administrative and regulatory proceedings, losses, expenses and costs
of any kind, whether actual, alleged, or threatened, including but
not limited to actual attorney fees, litigation expenses and court
costs of any kind without restriction or limitation, incurred in relation
to, as a consequence of, arising out of or in any way attributable
to the existence, maintenance, location, configuration, design, installation,
or operation of the Wireless Telecommunications Facility, the issuance
of any municipal approval by the Town or Board, or arising out of
the obligations of the parties under the license agreement, except
for the sole gross negligence or willful acts of the Town, the Town
Board, Board of Trustees, or Planning Board, as the case may be, their
public officers, employees, servants, and/or agents. The Applicant
shall pay such obligations as they are incurred by the Town and/or
Boards, their public officers, employees, servants, and/or agents,
and in the event of any claim or lawsuit, shall submit a deposit in
such amount as the Town reasonably determines necessary to protect
the Town, Boards, officials, employees, servants and/or agents from
exposure to fees, costs, attorney fees, or liability with respect
to such claim or lawsuit. If any provision of the license agreement
or resolution approving the Application shall conflict with the provisions
of this subsection, then in such event, the provisions of this subsection
shall control; and
(2)
Height. To the fullest extent permitted by law, no pole, mast,
or mount and all attached equipment, including Antennas, exceeding
fifty (50) feet in Height above ground level shall be installed or
located within the Public Rights-of-Way, and this height limit may
not be varied by any Board; and
(3)
Compliance with law. The Applicant shall comply with all applicable
provisions of the Town Code, license agreement, any permit or approval
issued pursuant to this Chapter, and all other applicable federal,
state and local laws, rules and regulations. Any failure of the Town
to enforce compliance with such approval or any applicable law, rule
or regulation shall not relieve the Applicant of its obligations under
the code, any permit or approval issued, or other applicable law;
and
(4)
Verification of data. The owner of the site or pole, the Applicant
and operator of the facility or equipment shall cooperate with the
Town to:
(5)
Proper maintenance. All Wireless Telecommunications Facilities
shall be maintained in a safe and proper manner. Any Person who commits
an offense against the provisions of this section shall be deemed
to be in violation of this Chapter and shall be subject to the fines
and penalties set forth herein.
(B)
Municipal Property and Municipal Facilities. In cases where installations
are proposed on Municipal Property or Municipal Facilities, the following
shall apply.
(1)
Indemnification. To the fullest extent permitted by law, and
whether or not the facilities being approved are wired or wireless,
the Applicant and any successors and assigns, shall indemnify and
hold harmless the Town, its Boards, public officers, employees, servants
and agents, from and against any liability, claims, suits, actions,
admnistrative and regulatory proceedings, losses, expenses and costs
of any kind, whether actual, alleged, or threatened, including but
not limited to actual attorney fees, litigation expenses and court
costs of any kind without restriction or limitation, incurred in relation
to, as a consequence of, arising out of or in any way attributable
to the existence, maintenance, location, configuration; design, installation,
or operation of the Wireless Telecommunications Facility, the issuance
of any municipal approval by the Town or Board, or arising out of
the obligations of the parties under the license agreement, except
for the sole gross negligence or willful acts of the Town, the Town
Board, Board of Trustees, or Planning Board, as the case may be, their
public officers, employees, servants, and/or agents. The Applicant
shall pay such obligations as they are incurred by the Town and/or
Boards, their public officers, employees, servants, and/or agents,
and in the event of any claim or lawsuit, shall submit a deposit in
such amount as the Town reasonably determines necessary to protect
the Town, Boards, officials, employees, servants and/or agents from
exposure to fees, costs, attorney fees, or liability with respect
to such claim or lawsuit. If any provision of the license agreement
or resolution approving the Application shall conflict with the provisions
of this subsection, then in such event, the provisions of this subsection
shall control; and
(2)
Compliance with law. The Applicant shall comply with all applicable
provisions of the Town Code, license agreement, any permit or approval
issued pursuant to this Chapter, and all other applicable federal,
state and local laws, rules and regulations. Any failure of the Town
to enforce compliance with such approval or any applicable law, rule
or regulation shall not relieve the Applicant of its obligations under
the code, any permit or approval issued, or other applicable law;
and
(3)
Verification of data. The owner of the site or pole, the Applicant
and operator of the facility or equipment shall cooperate with the
Town to:
(4)
Proper maintenance. All Wireless Telecommunications Facilities
shall be maintained in a safe and proper manner. Any Person who commits
an offense against the provisions of this section shall be deemed
to be in violation of this Chapter and shall be subject to the fines
and penalties set forth herein.
(A)
An owner and/or operator of a Wireless Telecommunications Facility
on Municipal Facilities, Municipal Property and Public Rights-of-Way
shall secure, and at all times maintain, in full force and effect,
insurance coverage as set forth below:
(1)
Commercial General Liability Coverage: covering bodily injury,
personal injury, property damage, public disputes, libel, slander,
and other events related to their products and operations with limits
of no less than two million dollars ($2,000,000) per occurrence/two
million dollars ($2,000,000) in the aggregate. Said coverage may not
contain any electromagnetic frequency (EMF) exclusions; and
(2)
Commercial Automobile Liability Coverage: with limits of no
less than one million dollars ($1,000,000) per occurrence/two million
dollars ($2,000,000) in the aggregate; and
(3)
Workers Compensation and Disability Insurance with limits of
no less than one million dollars ($1,000,000), or in the statutory
amount, whichever is greater; and
(4)
Umbrella Liability Coverage with limits of no less than five
million dollars ($5,000,000) per occurrence/five million dollars ($5,000,000)
in the aggregate.
(5)
Commercial Property Insurance with limits of no less than the
value of all of the Owners' Property and Equipment including but not
limited to cellular Towers, Antennas, and related equipment.
(6)
Stand Alone Network Security/Cyber Liability Insurance with
limits of no less than five million dollars ($5,000,000) per occurrence/five
million dollars ($5,000,000) aggregate.
(B)
The Commercial General Liability Insurance Policy and Commercial
Property Coverage shall specifically include the Town of Huntington,
Huntington Board of Trustees, and its elected officials, officers,
boards and employees as additional insureds, by endorsement, and a
copy of the endorsement shall be provided to the Town Attorney's Office,
as respects any covered liability arising out of or in connection
with the issuance of a license agreement or other approval by the
Town, the performance of the work, the installation, maintenance and
operation of its Wireless Telecommunication Facility, and its use
and occupancy of the Public Rights-of-Way, Municipal Property, and
Municipal Facilities. Coverage shall be in an occurrence format and
in accordance with the limits set forth herein. Claims-made policies
are not acceptable.
(C)
All policies shall be on a form acceptable to the Town Attorney.
All insurance providers shall be authorized to do business in the
State of New York and shall carry a minimum rating assigned by A.M.
Best & Company's Key Rating Guide of at least "A VII" overall.
(D)
The insurance shall not be canceled, non-renewed, or any material
change made by the owner or operator of the Telecommunication Facility,
nor shall the required occurrence or aggregate limits be reduced during
the term of the license agreement, or while the installation is in
place, unless approved by the Town Attorney in writing. The owner
or operator shall be responsible for notifying the Town in writing
of any cancellation, non-renewal, or material change at least thirty
(30) business days prior to such action and for non-payment of premium
at least ten (10) business days prior to such cancellation. The failure
of such Person(s) to maintain in good standing the coverages and insurance
policies set forth herein during the term of the license agreement,
or while the installation is in place, or to notify the Town of any
proposed cancellation shall be deemed a violation of this chapter.
(E)
Renewal or replacement policies or certificates shall be delivered
to the Town at least fifteen (15) business days before the expiration
of the insurance that such policies are to renew or replace. The certificate(s)
of insurance shall be mailed with the payments required to be made,
if applicable, pursuant to the license agreement to the attention
of the Town Comptroller and Town Attorney.
(F)
The owner/operator shall pay all premiums and deductibles applicable
to its insurance policies.
(G)
All coverage shall be primary and non-contributory to the Town of
Huntington and the Town of Huntington Board of Trustees, its elected
officials, officers, boards, and employees.
(H)
The owner/operator will remain fully informed of all municipal ordinances
and regulations, State and Federal Laws in any manner affecting the
work or goods herein specified, and any extra work contracted by the
Contractor and shall at all times observe and comply with said ordinances,
laws, and regulations, including all applicable provisions of the
Workers' Compensation and Labor Laws. The owner/operator agrees to
defend, indemnify, and hold the Town of Huntington, Town of Huntington
Board of Trustees, its officers, agents, and employees harmless from
any liability and attorney's fees, imposed upon or incurred by the
Town, its officers, agents, and/or employees arising from the negligence,
gross negligence, recklessness, malpractice, or intentional tort of
the contractor including any Action Over Claims.
Subject to the provisions of this Chapter, all Wireless Telecommunications
Facilities approved for installation are subject to the filing of
an Application for and issuance of building permits and certificates
of occupancy, or other necessary approvals for each node, Antenna,
piece of equipment or structure to be installed. The installation
of new poles, streetlights, stanchions and other similar structures,
or ground-mounted equipment and structures in Public Rights-of-Way
shall also require road opening permits from the Highway Department.
The Applicant shall pay all required fees and charges for such approvals.
Any Person who fails and/or neglects to file an Application and secure
all other necessary approvals and permits before the commencement
of work shall be deemed to be in violation of this Chapter and shall
be subject to the fines and penalties set forth herein.
