The Telecommunications Act of 1996 affirmed the Village of Brewster's authority concerning the placement, construction and modification of wireless telecommunications facilities. The Village of Brewster finds that wireless telecommunications facilities may pose significant concerns to the health, safety, public welfare, character and environment of the Village and its inhabitants. The Village also recognizes that facilitating the development of wireless service technology can be an economic development asset to the Village and of significant benefit to the Village and its residents. In order to insure that the placement, construction or modification of wireless telecommunications facilities is consistent with the Village's land use policies, the Village is adopting a single, comprehensive, wireless telecommunications facilities application and permit process. The intent of this chapter is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the Village of Brewster.
This chapter shall be known and cited as the "Wireless Telecommunications Facilities Siting Ordinance for the Village of Brewster, New York."
For purposes of this chapter, 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, and located on the same property or lot as the wireless telecommunications facilities, including, but not limited to, utility or transmission equipment storage sheds or cabinets.
ANTENNA A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals. Such shall include, but not be limited to, radio, television, cellular, paging, personal telecommunications services (PCS), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the Village's siting, building and permitting authority.
APPLICANT Any wireless service provider submitting an application for a special use permit for wireless telecommunications facilities.
APPLICATION All necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.
BOARD The Board of Trustees of the Village of Brewster, New York.
CO-LOCATION The use of a tower or structure to support antennas for the provision of wireless services without increasing the height of the tower or structure.
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, 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 information and/or data necessary to enable an informed decision to be made with respect to an application.
FAA The Federal Aviation Administration, or its duly designated and authorized successor agency.
FCC The Federal Communications Commission, or its duly designated and authorized successor agency.
HEIGHT When referring to a tower or 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.
MODIFICATION or MODIFY The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless facility, such as antennas, cabling, radios, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or an upgrade or changeout of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.
NIER Non-ionizing 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.
SPECIAL USE PERMIT The official document or permit by which an applicant is allowed to construct and use wireless telecommunications facilities as granted or issued by the Village.
STATE The State of New York.
STEALTH or STEALTH TECHNOLOGY Minimize 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 using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
TELECOMMUNICATIONS The transmission and/or reception of audio, video, data and other information by wire, radio frequency, light and other electronic or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
TEMPORARY Temporary in relation to all aspects and components of this chapter; something intended to, or that does, exist for fewer than 90 days.
VILLAGE The Village of Brewster, New York.
WIRELESS TELECOMMUNICATIONS FACILITIES Includes a telecommunications tower, tower, telecommunications site and personal wireless facility, and means a structure, facility or location designed or intended to be used as, or used to support, antennas or other transmitting or receiving devices. This includes, without limit, towers, wireless telecommunications facilities of all types and kinds and structures, including those that employ camouflage or stealth technology to mitigate the visual impact, including but not limited to structures such as a multistory building, church steeple, silo, water tower, utility pole, sign or other structures that can be used to mitigate the visual impact of an antenna or the functional equivalent of such, including all related facilities such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services that may not be licensed by the FCC, but are not expressly exempt from the Village's land use, siting, building and permitting authority, excluding those used exclusively for the Village's fire or police or exclusively for private, noncommercial radio and television reception and private citizens band facilities, amateur radio and other similar noncommercial telecommunications where the height of the facility is below the height limits set forth in this chapter and the facility is not used for commercial purposes.
In order to ensure that the placement, construction and modification of wireless telecommunications facilities protects the Village's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this chapter, the Village hereby adopts an overall policy with respect to a special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
A. Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities.
B. Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent.
C. Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications facilities among service providers.
D. Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of stealth technology, to minimize 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 using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:
A. All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and 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 in such a manner that they are readily accessible only to persons authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign no larger than four square feet in order to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities and shall contain 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 be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. The sign shall not be lighted, unless lighting is required by applicable law, rule or regulation. No other signage, including advertising, shall be permitted.
All proposed towers and any other proposed wireless telecommunications facility structures 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 the height of the proposed tower or wireless telecommunications facility structure plus 10% of the height of the tower or structure, or the existing setback requirement of the underlying zoning district, whichever is greater. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.
The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:
A. Such special use permit shall be nonexclusive.
B. Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification to the Village.
C. Such special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled or terminated for a violation of the conditions and provisions of the special use permit, or for a material violation of this chapter after prior written notice to the holder of the special use permit.
The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at their cost and expense, be jointly required to execute and file with the Village a bond, or other form of security acceptable to the Village as to type of security and the form and manner of execution, in an amount of at least $100,000 and with such sureties as are deemed sufficient by the Village to assure the faithful performance of the terms and conditions of this chapter and conditions of any special use permit issued pursuant to this chapter. 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.
In order to verify that the holder of a special use permit for wireless telecommunications facilities and any and all lessees, renters and/or licensees of wireless telecommunications facilities place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building and zoning codes, laws, ordinances and regulations and other applicable requirements, the Village may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site.
The holder of the special use permit shall, annually, certify to the Village that NIER levels at the site are within the threshold levels adopted by the FCC.
Any applicant desiring relief, waiver or exemption from any aspect or requirement of this chapter may request such at the preapplication meeting, provided that the relief or exemption is contained in the original application for either a special use permit or, in the case of an existing or previously granted special use permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the Village in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant effect on the health, safety and welfare of the Village, its residents and other service providers.
Where this chapter differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the Village, state or federal government, this chapter shall apply.
This chapter is enacted pursuant to applicable authority granted by the state and federal government, and New York State's Municipal Home Rule Law.