Article V Supplementary Regulations

Not more than one recreational vehicle or boat per dwelling unit may be parked or stored outdoors on an occupied lot in any residence district;

No mobile home is used or occupied while it is so parked or stored and the doors thereof are kept securely locked; and

The doors of such mobile home are kept securely locked while so parked.

Private swimming pools in residential districts.

No pool or accessory equipment shall be located in any front yard.

No pool or accessory equipment shall be nearer than 20 feet to any property line.

The swimming pool shall be constructed and enclosed in compliance with the provisions of the New York State Uniform Fire Prevention and Building Code.

[Amended 4-16-1990 by L.L. No. 4-1990]

The area in which the pool is located shall be screened from the view of abutting properties by means of an opaque fence or wall or thick hedges with a height of not less than 6 1/2 feet above the ground.

No lighting or spotlighting shall be permitted which will project light rays beyond the lot lines of the lot on which said pool is located.

Said pool shall be equipped with a filtration system which shall either be screened or enclosed on all sides or located below the ground.

Tennis courts, deck- or paddle-tennis courts and similar accessory recreation facilities.

No tennis court, deck- or paddle-tennis court or similar accessory facility shall be located in any front yard.

No part of any such facility shall be located nearer than 15 feet to any property line.

No lighting or spotlighting shall be permitted which will provide light rays beyond the lot lines of the lot on which said facility is located.

The area in which the facility is located shall be screened from the view of abutting properties by means of an opaque fence or wall or thick hedges with a height of not less than 6 1/2 feet above the ground.

Trash compactors, dumpsters and other large trash containers.

The compactor, dumpster or container shall be located no closer to the property lines than is permitted for an accessory structure in said district.

The compactor, dumpster or container shall not be located in any required loading berth or in any required off-street parking space.

The compactor, dumpster or container shall be appropriately screened or located so as to minimize its effect on residential uses.

The design and operation of any trash compactor shall be of rodent-proof design and shall be approved by the Building Inspector of the Village of Mount Kisco prior to its installation.

[Amended 7-16-2018 by L.L. No. 5-2018]

Tents. The erection or maintenance of any tent is prohibited, except as in accordance with the following:

[Amended 4-21-2003 by L.L. No. 2-2003]

Temporary permit. The Building Inspector may issue a temporary permit, upon payment of the minimum building permit fee, for a tent, provided that:

The erection or construction of the tent meets all the fire-resistance requirements of the Fire Prevention Law and the Building Code of Mount Kisco.[1]

Editor's Note: See Ch. 65, Fire Prevention, and Ch. 51, Building Construction.

The location and size of the tent use shall be of such character that, in general, it will be in harmony with the existing development of the district in which it is proposed to be situated and will not be detrimental or obnoxious to adjacent properties in accordance with the zoning classification of such properties, as set forth in the Zoning Law of the Village of Mount Kisco.

The location and size of the tent, the nature and intensity of operations involved in or conducted in connection therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be hazardous or inconvenient to persons using or passing by the premises or conflict with the normal traffic of the surrounding area.

Duration of permit. In no case shall a tent be maintained or erected for a period of time exceeding 14 days from the date of erection specified in the temporary permit.

Frequency of permit. In no case shall more than one temporary permit for a tent be issued per calendar year quarter.

Exceptions. Notwithstanding any other definition or provision herein, a tent covering not more than 100 square feet of ground area and commonly used for play purposes, or a cemetery or house of worship canopy, or a tent used for purposes accessory to a residence and for fewer than 6 days in duration shall be permitted and shall not be subject to this section. Marquees, awnings or other similar structures, as defined in the Sign Law of the Village of Mount Kisco,[2] shall not be deemed tents, but shall be subject to all applicable provisions of this chapter and the aforesaid law.[3]

Editor's Note: See Ch. 89, Signs, Awnings and Marquees.

Editor's Note: Original Subsection 5.1.6, Motels and hotels where permitted, which immediately followed this subsection, was repealed 11-16-1987 by L.L. No. 11-1987.

Motor vehicle sales, rentals, service and storage, where permitted.

[Amended 8-14-1989 by L.L No. 8-1989][4]

A principal structure with toilet facilities shall exist at any motor vehicle sales or rental facility. Said structure shall not be a trailer or a mobile home.

Repairs and service accessory to any motor vehicle sales or rental facility shall be permitted, provided that all work is performed within a totally enclosed building.

Outdoor area lighting shall be that generally necessary for security purposes. Lighting for illuminating an outdoor sales area shall be restricted to the front 1/3 of the lot depth. Said lighting shall be reduced to security lighting at the close of business. All outdoor area lighting shall be located at a height not more than 14 feet above ground level and shall be so directed that no illumination shall be visible beyond the lot lines.

Temporary signs or other advertising devices shall be subject to the provisions of Chapter 89 of this Code.

Used motor vehicle sales shall be permitted only if conducted as an accessory use to new motor vehicle sales.

[Amended 1-5-2015 by L.L. No. 2-2015]

Storage or display of used motor vehicles or rental vehicles shall be located on paved areas and shall not be permitted in the front yard. All storage or display areas visible from any street shall be completely screened from view by shrubbery or such other visual barrier as shall be acceptable to the Planning Board.

[Amended 1-5-2015 by L.L. No. 2-2015]

Motor vehicles for sale or rent shall not contain or bear advertising gimmicks or devices that can be seen from the street.

No loading, unloading or transfer operations shall be permitted on any public street, at the curb or within the required front yard.

A plan for vehicle circulation, customer dropoff and pickup areas, deliveries and vehicle preparation, repair and storage shall be designed in a manner acceptable to the Planning Board so that the plan achieves a safe, efficient, and aesthetically appropriate arrangement.

[Added 1-5-2015 by L.L. No. 2-2015]

(10)

Any motor vehicle rentals available to the public shall be restricted to vehicles which are well maintained, in a clean and safe condition and not more than five years old.

[Added 1-5-2015 by L.L. No. 2-2015]

Editor's Note: Former Subsection F, Rest, nursing and convalescent homes and homes for the aging was repealed 4-21-2003 by L.L. No. 2-2003. This local law also redesignated former Subsections G through N as F through M, respectively.

Gasoline stations, commercial garages and motor vehicle repair shops.

No driveway to or from any commercial garage, gasoline station or motor vehicle repair shop shall be within 1,000 feet of any other such use or within 200 feet of the boundary line of any residential district or of any school, church, park, playground, hospital, public library, institution for dependents or children or any place of public assembly or restaurant designed for the simultaneous use of 100 persons or more, regardless of the district where either premises are located.

[Amended 11-16-1987 by L.L. No. 11-1987; 4-16-1990 by L.L. No. 4-1990]

No building, accessory structure, fuel dispenser or service appliance shall be within 20 feet of any street line.

There shall be no opening in the wall or roof of any garage, gasoline station or motor vehicle repair shop, except chimney openings and emergency fire doors, within 15 feet of any property line, unless equipped with wire, glass and metal sash and frames.

When located adjacent to residence districts, a thirty-foot buffer area shall be provided. The Planning Board, as part of its site plan review, shall require landscaping, fencing or other measures to buffer the gasoline station, commercial garage or motor vehicle repair shop from residential properties.

Any canopy or similar type of roof structure provided over fuel pumps shall be permitted, but shall be deemed a structure for purposes of lot and bulk requirements and shall meet the setbacks required for a principal building.

[Amended 7-16-2018 by L.L. No. 5-2018]

Any property which is used for any purpose in addition to the sale of gasoline and motor oil shall be subject to the following restrictions:

All repair work is to be carried on indoors.

All automobile parts, wrecked or damaged motor vehicles or similar articles shall be completely stored within a building.

Outdoor storage of vehicles is not permitted, except when necessitated by unavoidable delays in effectuating needed repairs.

Incidental sale or rental of motor vehicles shall be permitted, subject to the issuance of a special permit by the Planning Board, provided that:

The sale or rental facility is operated by the owner or operator of the gasoline sale operation; and

The sale or rental use does not occupy more than 10% of the site area.

The sale of food and beverage items, including alcoholic beverages, shall not be permitted, except that not more than three coin-operated vending machines dispensing food or other items, other than alcoholic beverages, will be permitted.

All multiple uses shall be subject to unified control and management.[5]

Editor's Note: Original Subsection 5.1.9F(7), which dealt with parking requirements and immediately followed this subsection, was repealed 11-16-1987.

Each individual use on site shall be required to meet the specific parking requirements as specified in § 110-28K(1) of this chapter.

Accessory storage of building, builder and household material and supplies. Building, builder and household material and supplies partially in buildings not fully enclosed on all sides, where permitted, shall comply with the following:

[Amended 11-16-1987 by L.L. No. 11-1987; 4-21-2003 by L.L. No. 2-2003]

The outdoor storage area shall not be located within 100 feet distant from any residence district boundary.

Material stored outdoors shall not be stored more than six feet high.

Any such storage area not conducted in a building fully enclosed on all sides shall be suitably screened by such material and/or planting of such height and density as the Planning Board may deem to be required to shield fully such use or the unenclosed side(s) of said building from the view of all surrounding properties.

Not more than 25% of the gross lot area shall be devoted to storage use conducted entirely or partially in the open, provided that any portion of the lot area devoted to off-street parking and loading shall be excluded from said twenty-five-percent limitation.

Not less than 50% of the aggregate floor area, as defined below, shall be located within fully enclosed buildings which are principally devoted to sales. For purposes of this section, the aggregate floor area shall include the floor area within buildings which are fully enclosed on all sides and the area which is occupied by uses not fully enclosed on all sides.

Health and athletic membership clubs. Health and athletic membership clubs, where permitted and where conducting leisure-time activities as a principal use and which make their facilities available for members and guests on a periodic or seasonal basis, shall comply with the following:

[Amended 11-1-1993 by L.L. No. 11-1993; 4-21-2003 by L.L. No. 2-2003]

Except as otherwise provided for herein, all activities shall be carried on in buildings fully enclosed on all sides and having a roof.

The Planning Board may permit outdoor tennis courts, paddle and deck tennis, similar outdoor court games and outdoor swimming facilities, provided that such outdoor uses are incidental to the purposes of and not the principal use of the health and athletic membership club.

In determining whether to permit an outdoor use, the Planning Board shall consider the effect of such use upon nearby residential areas, the relative size of the proposed outdoor use and the indoor use on the same premises and the effect of any lighting or public address system which may be used in connection with the operation of the facility.

No special permit for tennis or swimming facilities shall be granted unless the facilities comply with all applicable provisions of Subsections B and C of this section.

No special permit shall be granted unless the applicant demonstrates compliance with Article 30 of the New York State General Business Law.

The following accessory uses may be permitted:

Eating facilities, including cocktail lounges and snack bars.

Shops for retail sale or rental for on-premises use of equipment and apparel associated with the leisure activities constituting the principal use.

Facilities for the rendering of personal services on the premises to persons using the facility in general.

Off-street parking and loading facilities in accordance with the provisions of Article IV of this chapter.

Other customary accessory uses.

Accessory uses shall be permitted only subject to the following conditions:

No accessory use shall be conducted other than in the portion of the facility specifically provided therefor.

Not more than three accessory uses shall be permitted with respect to any facility.

The aggregate floor area devoted to accessory uses shall not exceed 25% of the gross area of the principal use(s).

There shall be no direct access for customers to the accessory use from outside the area devoted to the principal use(s).

There shall be no signs visible from outside the area devoted to the principal use(s) indicating the accessory use.

Operation of the accessory use shall not be permitted except during hours when the principal use is in operation, except that a restaurant or snack bar may operate for 1/2 hour prior to and one hour subsequent to the opening and closing times, respectively, of the principal use.

No cabaret license shall be issued for any accessory use hereunder.

Nursery schools, child and adult day-care centers.

[Amended 7-12-1999 by L.L. No. 6-1999]

Said facility shall be duly authorized or licensed as may be required by the State of New York.

Except as provided in Subsection K(5) below, said facility shall be located at a school, church or other such community facility deemed appropriate by the Mount Kisco Planning Board.

Said facility, if a child day-care center, shall include an outdoor play area of a size, design and location suitable for the specific use of the children attending the facility and shall have a plan which provides for safe pedestrian access to the site, including sidewalks if deemed appropriate by the approving agency.

Said facility shall be certified by the Building Inspector of the Village of Mount Kisco as being in compliance with fire safety requirements. This certificate shall be based on a review of a fire safety plan, submitted by the applicant, indicating ingress and egress locations, automatic fire-protection facilities and fire extinguisher locations.

Where not located as provided in Subsection K(2) above, said facility shall have a safely designed and clearly identified drop off/pick up area for vehicular queuing of automobiles completely on site. This area shall be separate from the main thoroughfare and may be within on-site parking areas.

Where not located as provided in Subsection K(2) above, said facility shall not be located on the same site as, or directly adjacent to, any property containing uses which generate a high volume of truck traffic; notwithstanding this provision, the facility may be so located if the approving agency requires additional safety precautions, such as fencing, as a condition of approval.

Prohibited uses.

Any use not permitted by this chapter shall be deemed to be prohibited. Any list of prohibited uses contained in any section of this chapter shall not, however, be deemed an exhaustive list but shall have been included for the purposes of clarity and emphasis and shall illustrate by example some of the uses frequently proposed that are deemed undesirable and incompatible and that are thus prohibited.

Any use which is noxious or offensive by reason of emission of odor, dust, noise, smoke, gas, fumes or radiation or which presents a hazard to the public health and safety shall be prohibited.

Adult entertainment uses.

[Added 11-1-1993 by L.L. No. 10-1993]

Purpose. The Board of Trustees hereby finds that certain uses of property, by their nature, have serious objectionable operational characteristics which can lead to a significant impact on the surrounding community. The Board of Trustees further finds that the unrestrained proliferation of such uses is inconsistent with existing development and future plans for the Village/Town of Mount Kisco in that such uses often result in influences on the community which increase the crime rate and undermine the economic, moral and social welfare of the community. The deleterious effects of such uses change the economic, social and moral character of the existing community and adversely affect existing businesses and community and family life. As business activity drops off and the quality of life deteriorates, merchants and families move away from the area, leaving it in a vacant and depressed state. The purpose of this subsection is to prevent the unrestricted proliferation of such uses and to ensure that the effects of such uses will not adversely affect the health, safety and economic well-being of the community, and particularly the children of the community, by enacting criteria for the establishment of adult entertainment uses.

Permit required. No adult entertainment use shall be permitted except upon the issuance of a special permit by the Planning Board pursuant to § 110-46 of this Code.

Standards. No special permit for an adult entertainment use shall be granted by the Planning Board except in compliance with the requirements of § 110-46 of this Code, and the following standards:

No more than one activity constituting an adult entertainment use shall be permitted on any lot.

No adult entertainment use shall be permitted in any building otherwise used in whole or in part for residential purposes.

No adult entertainment use shall be permitted on any lot which is located within 1,000 feet of any other lot on which is located an adult entertainment use.

No adult entertainment use shall be permitted on any lot which is located within 1,000 feet of any lot in any residential district.

No adult entertainment use shall be permitted on any lot which is located within 1,000 feet of any lot on which is located a church, community center, funeral home, school, day-care center, hospital, alcoholism center or drug treatment center, counseling or psychiatric treatment facility or public park.

No adult entertainment use shall be permitted on any lot which is located within 1,000 feet of any school bus stop.

The proposed use shall meet all other requirements of the laws of the Village/Town of Mount Kisco, including but not limited to district lot and bulk regulations, parking regulations and signage requirements.

It shall be a condition of any special permit issued for an adult entertainment use that no person under the age of 18 years shall be permitted into the premises.

The Planning Board may impose such terms and conditions upon the issuance of the special permit required hereunder as it deems appropriate to further the aims of this subsection, including but not limited to restrictions on advertising, outdoor displays and the location of merchandise.

Effect on existing uses.

Any adult entertainment use lawfully in existence on the date on which the provisions of this subsection become effective shall be permitted to continue, provided that such use is registered with the Building Inspector within 30 days of the effective date of this subsection and it is established to the satisfaction of the Building Inspector that such use complies with all of the requirements set forth herein.

Discontinuation of use.

Any adult entertainment use lawfully in existence on the date on which the provisions of this subsection become effective which registers with the Building Inspector within 30 days of the effective date of this subsection but cannot establish to the satisfaction of the Building Inspector that it complies with the requirements of this subsection shall be discontinued on or before the date specified in accordance with the following schedule:

Amount of Capital Investment (as of effective date of Article)	Date Before Which Use Shall Terminate
$0 to $25,000	December 31, 1994
$25,001 to $50,000	December 31, 1995
$50,001 to $75,000	December 31, 1996
$75,001 to $100,000	December 31, 1997
$100,001 or more	December 31, 1998

The owner of each such use shall specify the amount of its capital investment upon registering with the Building Inspector and shall provide such documentation as the Building Inspector shall require to establish such amount.

Any adult entertainment use lawfully in existence on the date on which the provisions of this subsection become effective which fails to register with the Building Inspector within 30 days of the effective date of this subsection shall be discontinued on or before December 31, 1993.

Billiard parlors. No special permit for a billiard parlor shall be granted by the Planning Board except in compliance with the requirements of § 110-46 of this Code and the following standards:

[Added 12-19-1994 by L.L. No. 10-1994]

No billiard parlor shall be permitted in any building otherwise used in whole or in part for residential purposes.

No billiard parlor shall be permitted on any lot which is located within 1,000 feet of any other lot on which is located a billiard parlor.

No billiard parlor use shall be permitted on any lot which is located within 1,000 feet of any lot on which is located a church, community center, funeral home, school, day-care center, hospital, alcoholism center or drug treatment center, counseling or psychiatric treatment facility or public park.

Research, design and development facilities. No special permit for a research, design and development facility shall be granted by the Planning Board except in compliance with the following standards:[6]

[Added 4-21-2003 by L.L. No. 2-2003]

In no event shall any of the following be permitted:

Chemical plants.

Motor-testing laboratories.

The keeping and use of large animals, but nothing herein shall prohibit the keeping and use of small animals that are commonly used in scientific laboratories incidental to the experimentation, development and research conducted in the laboratories, provided that such animals shall be kept only in the interior of any building or structure located on the property of the laboratories, and further provided that no animals shall be kept that will create any noise or cause offenses, annoyances or disturbances to any of the surrounding properties and to their owners and occupants, and all offal or excretions of such small animals shall be removed promptly and disposed of in a sanitary manner.

Facilities engaged in research in the field of explosives.

There shall be no display or sale of goods at retail, and there shall be no manufacture on the premises of articles for sale, except with respect to small quantities of test, experimental or trial products, models or prototypes that may be produced in accordance with the provisions of this chapter related to accessory uses, and except prototype items that may be called for specifically in development contracts undertaken for government or commercial agencies where such development contracts call for the delivery of such prototypes to confirm or exhibit the development work conducted.

No offensive noises, gases, fumes, odors, vibrations or radio, electric or electronic emanations, or other objectionable influences or hazards shall emanate from such use, and no waste products shall be discharged therefrom of a character to create a nuisance.

No radioactive materials shall be kept or used on the premises.

Editor's Note: Another Subsection N, added 6-19-1995 by L.L. No. 5-1995, which provided for historic residence museums, was repealed 11-20-1995 by L.L. No. 9-1995.

Full-service grocery stores. Where allowed by special permit, full-service grocery stores shall comply with the requirements of § 110-46 of this Code and the following additional specific standards:

[Added 7-16-2018 by L.L. No. 5-2018]

Garbage containers and dumpsters shall be located either inside or in a manner that does not adversely impact an adjoining property or tenant. All waste/recycled boxes shall be picked up on a delivery schedule with a frequency to prevent any odor, vermin or rodents from being detected outside of the store;

Demonstration by the applicant that potential traffic generation shall be within the reasonable capacity of the existing or planned road or street providing access, and that traffic circulation, exit and entrance drives are laid out to minimize traffic hazards and nuisances;

On-premises dining/consumption of food, wine and beer (subject to proper licensing) shall be limited to an area not exceeding 5% of the total square footage of the store or 2,000 square feet, whichever is less, and shall be permitted indoors and/or outdoors;

Outdoor display and/or storage shall be limited to plants, flowers, herbs, fruits, vegetables, and Christmas trees;

Any recycling facilities such as reverse vending machines (RVM) or similar equipment shall be located inside the building;

Any permitted accessory use, other than parking or a use expressly authorized as part of the special permit, shall be conducted indoors;

Cart corrals shall be provided and located in size and number to sufficiently accommodate patrons and minimize hazards within the parking lot;

The following accessory uses shall be permitted: banks (including indoor ATMs), pharmacies, and optician/optometrists;

No amplified music or sound system to be operated outdoors;

(10)

No trailers or containers shall remain on site for more than 24 hours, and trailers shall not be utilized for additional product storage;

(11)

All parking and loading requirements of §§ 110-28 and 110-29 shall be satisfied and designed in such a fashion as to minimize and/or eliminate truck deliveries from interfering with customer parking and pedestrian safety and circulation.

Family recreation facility. Where allowed by special permit, family recreation centers, as such term is defined in § 110-59, shall comply with the requirements of § 110-46 of this Code and the following additional specific standards:

[Added 7-16-2018 by L.L. No. 5-2018]

A family recreation facility shall only be permitted within a site that is not utilized in whole or in part for residential purposes, nor shall same abut a lot in which residential dwellings are allowed as a principally permitted use;

The operator/applicant of the family recreation facility shall submit a lease or letter from the owner of the property joining in the application;

Drug, cigarette and vape and related use paraphernalia sales and consumption shall be prohibited;

A management plan detailing operations, hours, security staffing, means of egress, etc., shall be provided by the applicant;

No amplified music or sound system shall be operated outdoors;

Term of permit. The permit shall expire upon transfer of ownership of the permitted premises;

Any amusement devices shall be subject to the provisions of Chapter 45;[7] and

Editor's Note: See Ch. 45, Amusements.

§ 110-31 Supplementary development regulations.

Lot for every building. Except for designed multistructure developments, such as but not limited to shopping centers, office parks or multifamily or townhouse developments, not more than one principal building hereinafter erected shall be permitted on any lot in the Village of Mount Kisco.

Obstruction to vision at street intersections. At all street intersections, no obstruction to vision that exceeds 30 inches in height above street level, other than an existing structure or tree, shall be erected or maintained on any lot within the triangle formed by the street lines of such lot and a line drawn between points along such street lines 50 feet distant from their point of intersection.

Courts.

Inner courts. An inner court may be permitted if the minimum dimension of such court is not less than 1 1/2 times the average height of all surrounding walls of the buildings; however, in the case of residential buildings, said minimum dimension shall in no event be less than 60 feet. The height of walls surrounding an inner court shall be measured from the finished grade at the base thereof to the top of such walls, except that, in the case of roofs with a slope exceeding five inches vertical to 12 inches horizontal, the height shall be measured to the mean point between the top of said wall and the highest point of the roof.

Outer courts. The minimum width of an outer court shall be 20 feet, and the depth shall not exceed its width.

Yard requirements for corner lots.

Corner lots. All corner lots shall have front yards on both street frontages and two side yards.

Through lots. All through lots shall have front yards on both street frontages and two side yards.

Two-corner lots. All two-corner lots shall have front yards on two street frontages and two side yards.

Projecting features above roof level. Towers; gables; penthouses; scenery lofts; cupolas; spires, steeples and similar structures on places of worship; water tanks; ventilators; skylights; chimneys; solar energy devices; and similar structures and necessary mechanical appurtenances may be erected on the roof of a building to a height that is greater than the limit established for the district in which such building is located, provided that the aggregate area covered by all such structures and appurtenances in excess of the height limitations shall not exceed 10% of the area of the roof of the building on which they are located. Except for spires, steeples and similar structures on places of worship, the height of each such structure shall not exceed 15 feet above the level of the roof of the principal building. For other than residential structures, all such features shall be set back at least a distance equal to the height of such structure but not less than 10 feet from the walls of the building, except that walls of elevators and stair enclosures may be built on the side wall when required by the design of the building. All mechanical equipment and appurtenances located on a roof of any structure shall be suitably screened from view from any abutting and inhabited residence. All features such as water tanks, cooling towers and bulkheads shall be enclosed and shall be screened by walls of a material and design that is in general harmony with the building of which they are a part. Said design shall be subject to approval by the Planning Board and the Architectural Review Board.

[Amended 4-21-2003 by L.L. No. 2-2003]

Exceptions to yard requirements.

[Amended 11-16-1987 by L.L. No. 11-1987; 4-21-2003 by L.L. No. 2-2003]

Cornices, cantilevered roofs, window air conditioners and utility meters may project not more than two feet, and belt courses, window sills and other ornamental features may project not more than one foot, into a required yard.

Fences, hedges or walls, other than retaining walls, that are not over 6 1/2 feet in height may be erected anywhere on the lot, except that any such fence, wall or hedge, other than a retaining wall, that is erected in any front yard shall not have a height in excess of four feet. With respect to all new fence installations or replacements, the finished or formal presentation side of said fence shall face the adjacent property or street.

Accessory structures.

[Amended 1-23-1989 by L.L. No. 3-1989; 4-16-1990 by L.L. No. 4-1990; 6-15-1998 by L.L. No. 3-1998; 4-21-2003 by L.L. No. 2-2003]

No accessory structure, except a sign for which a permit, pursuant to Chapter 89 of this Code, has been granted and which is erected pursuant to a site plan approved by the Planning Board, shall be located or project nearer to any street line or side lot line than does the principal structure on the lot.

Whenever, due to topographic conditions, practical difficulties would result from the enforcement of the requirement set forth in Subsection A with respect to the location of a private residential garage, the Zoning Board of Appeals may grant a variance from such requirement to permit the erection of such a garage within not less than 10 feet of the street line where the natural slope of ground within 25 feet of such line is between 12% and 20% and within not less than five feet of the street line where the natural slope of ground within 25 feet of such line is 20% or greater.

No detached accessory structure, except a freestanding sign for which a permit, pursuant to Chapter 89 of this Code, has been granted and which is erected pursuant to a site plan approval by the Planning Board, shall be permitted for any retail, service or other commercial use.

An accessory structure shall not exceed 15 feet in height.

§ 110-32 Supplementary landscaping and illumination regulations.

An accessory detached garage shall not occupy more than 75% of the coverage of the existing or proposed principal building, shall not exceed 750 square feet of coverage, and shall not be closer than 15 feet to a rear lot line.

Area development plans. The Planning Board is hereby authorized and empowered to develop and recommend to the Board of Trustees area development plans for such areas of the village as the Planning Board shall deem advisable. Such area development plans shall establish additional regulations applicable to the layout and design of one or more sites as well as the buildings located thereon necessitated by the location or other special features of such sites, including but not limited to standards for landscaping, lighting, signage, utility installation, paving materials, pedestrian amenities, roadway locations, traffic improvements and parking facilities. Upon the adoption of an area development plan by resolution of the Board of Trustees, no subdivision plat or site plan may be approved, and no building permit or certificate of occupancy may be granted, for any site or sites governed by the area development plan, except in accordance with such plan.

[Added 1-6-1992 by L.L. No. 1-1992]

Outdoor display. With respect to all businesses, outdoor display shall only take place with prior site plan approval by the Planning Board in accordance with §110-45 of this chapter, or as otherwise permitted in the Village Code.

[Added by 4-21-2003 by L.L. No. 2-2003]

Landscaping, screening and buffer areas.

Except as hereinafter provided, all portions of improved multifamily and nonresidential properties which are not used for structures, off-street parking and loading, permitted outdoor storage, sidewalks or similar purposes or are not kept in their natural state shall be landscaped with grass, shrubs, trees and other ground cover in such manner as to minimize erosion and stormwater runoff.

Landscaped screening areas shall be provided along all property lines of multifamily and nonresidential uses where such uses abut residential district boundaries. Such landscaped areas shall comply with the following minimum standards, as well as all applicable requirements set forth elsewhere in this chapter:

Said landscaped areas shall include evergreen plantings of not less than five feet in initial height and/or other landscaping of such type, height, spacing and arrangement which, in the judgment of the Planning Board, provides proper screening of the use.

Unless specifically required elsewhere in this chapter, a wall, earth berm or fence of location, height, design and materials approved by the Planning Board may be substituted for part or all of the required landscaped areas.

Where the existing topography and/or existing landscaping provides adequate screening, the Planning Board may waive or modify the planting and/or landscape requirements of this chapter.

All trees, plantings, shrubbery or other screening facilities required by the Planning Board as part of site plan approval or by other requirements of the Zoning Law shall be maintained or replaced at all times at least to the same quality required of said items at the time they were initially installed.

Waiver of buffer requirements. Upon determination by the Planning Board that all or part of a required buffer area is not necessary for an individual site development, due to factors such as abutting land uses or topography, or if an alternative method of screening a property is proposed through earth berms, landscaping and other such treatments, the Board may modify or waive such buffer requirements, provided that the intensity of development on the subject site is not increased by the modification or waiver.

Illumination.

[Amended 4-21-2003 by L.L. No. 2-2003]

Purpose and intent. The Village Board of Trustees hereby finds that the regulation of outdoor lighting in the Village of Mount Kisco is necessary to prevent misdirected or excessive artificial light, caused by inappropriate or misaligned light fixtures that produce glare, light trespass, and/or unnecessary sky glow; and also that such regulation is necessary to discourage the waste of electricity and to improve or maintain night-time public safety, utility and security.

Light trespass. All new light fixtures, except street lighting, shall be designed, installed and maintained to prevent light trespass, as specified below.

At the lot lines of the subject property, illumination from the light fixtures shall not exceed 0.1 footcandle on residentially zoned property or 0.5 footcandle on nonresidentially zoned property, measured in a vertical plane.

Outdoor light fixtures shall be directed so that there will be no objectionable direct light emissions, and light fixtures near adjacent property may require additional shielding devices to prevent light trespass.

Outdoor lighting. All outdoor lighting fixtures installed and thereafter maintained other than those serving single-family or two-family residential dwellings shall comply with the following requirements:

All exterior illumination shall be shielded from the view of all surrounding properties and streets, and all such lighting, other than lighting of roads, parking areas or buildings, essential for safety or security purposes or as required by government regulation shall be extinguished during nonoperating hours. Illuminated signage is excluded from this requirement.

Where used for security purposes or to illuminate walkways, roadways and parking lots, only shielded light fixtures shall be used.

Where used for commercial and industrial purposes, such as in merchandise display areas, work areas, platforms, signs, architectural, landscape, or sports or recreational facilities, all light fixtures shall be equipped with automatic timing devices and comply with the following:

Light fixtures used to illuminate flags, statues or any other objects mounted on a pole, pedestal or platform shall use a narrow cone beam of light that will not extend beyond the illuminated object.

Other upward-directed architectural, landscape and decorative lighting shall not be visible above the building roof line.

Recreational sports facility lighting shall comply with IES recommendations and shall be shielded whenever possible.

Externally illuminated building identification or other signs shall only use shielded light fixtures mounted on the top of the sign structure.

All other outdoor lighting shall use shielded lighting fixtures.

All floodlight types of fixtures shall be permanently affixed in the approved position.

Foundations that support lighting poles not installed at least four feet behind the curb shall be not less than 24 inches above the ground.

Down-lighting in accordance with IES standards shall be provided around all senior citizen housing buildings. All walkways, parking areas and outdoor activity areas to be used shall be lighted in accordance with the provisions herein.

Illuminance requirements.

Street lighting. Average IES illuminance recommendations shall not be exceeded. IES average to minimum illuminance uniformity ratios are to be used as a guide for designing safe and adequate roadway lighting.

Outdoor parking facilities. Illuminance requirements shall be determined by the type of uses indicated below. Average and minimum illuminance shall be provided as shown below.

Levels of activity for types of parking uses:

High: regional shopping centers containing retail space of 300,000 square feet or more; fast-food facilities with seating for 40 or greater; entertainment theaters, sports arenas, automotive dealerships.

Normal: all other than high levels of activity shall be considered normal.

Illuminance (after depreciation) shall be maintained in accordance with the following table:

	General Parking and Pedestrian Traffic
Level of Activity	Average (footcandles)	Minimum (footcandles)
High	3.6	0.9
Normal	2.4	0.6

Illuminance of an American flag shall not exceed 5.0 footcandles.

All other illuminance uses shall not exceed IES recommendations.

Maximum to minimum illuminance ratios shall not exceed 15:1.

Site plan applications shall include the following:

Description of outdoor light fixtures, including component specifications such as lamps, reflectors, optics, angles of cutoff, supports, poles and manufacturer's catalog cuts.

Location and description of every outdoor light fixture and hours of operation.

Maintained illuminance shown as footcandles (after depreciation):

Maximum.

Minimum.

Average during operating and nonoperating hours.

Maximum to minimum ratio.

Average to minimum ratio.

Computer-generated photometric grid showing footcandle readings every 10 feet, and the average footcandles. Small areas may require the average to be computed from positions no greater than five feet apart.

Foundation details for light poles.

Supporting documentation when using IES recommendations.[1]

§ 110-33.1 Natural resources protection regulations.

Former Subsection D, Wetlands and steep slopes, as amended, which immediately followed this subsection, was repealed 4-21-2003 by L.L. No. 2-2003.

§ 110-33 Floodplain regulations.

Any development within the one-hundred-year floodplain, as defined by the National Flood Insurance Rate Maps, which are on file in the office of the Village Engineer, shall comply with the following:

Residential development New construction or any repair, reconstruction or improvement of a structure, of which the cost of such repair, reconstruction or improvement exceeds 50% of the market value of the structure, shall have the lowest floor, including the basement, elevated to or above the base flood elevation at that point, as defined on the Flood Insurance Rate Map.

Nonresidential development. New construction or any repair, reconstruction or improvement as above defined shall either have the lowest floor, including the basement, elevated to or above the base flood elevation at that point, as defined on the Flood Insurance Rate Map, or the building and all attendant utilities shall be floodproofed to the satisfaction of the Village Engineer.

[Added 4-21-2003 by L.L. No. 2-2003]

In addition to all other requirements of the Zoning Code, all development in the Village shall comply with the following natural resources protection regulations:

Steep slopes.

Development limitations. To protect environmentally sensitive lands, preserve the Village's natural resources, and promote the orderly development of land, development on parcels that contain excessively steep slope areas, which parcel on the effective date of this chapter is in excess of 40,000 square feet and is in single, undivided ownership, shall be limited by deducting the following from the gross lot area of such parcels to determine the net lot area [in conjunction with § 110-33.1B(1) herein]:

Fifty percent of the area of steep slopes greater than 25%.

Twenty-five percent of the area of steep slopes greater than 20% but not greater than 25%.

Steep slopes protection regulations.

Purpose. For the purpose of preventing erosion, preventing stormwater runoff and flooding, providing safe building sites, preventing landslides and soil instability, protecting the quantity and quality of the Village's surface and groundwater resources, protecting important scenic views and vistas, preserving areas of wildlife habitat, minimizing the area of land disturbance related to site development and protecting the Village's character and property values, it is the intent of these steep slope regulations to minimize disturbance on steep slopes and to avoid disturbance and construction activities on very steep slopes. Further, it is the intent of these steep slope regulations to minimize the development of hilltops and ridgelines. The Village Board, the Planning Board, the Zoning Board of Appeals, the Building Inspector and the Village Engineer shall take these objectives into consideration in reviewing and acting on any plans submitted pursuant to the provisions of this chapter.

Exempt and regulated activities.

Regulated activities.

It shall be unlawful to create any disturbance greater than 100 square feet in aggregate, or to cut any tree with a diameter greater than four inches when measured from 1 1/2 feet from ground level, on any steep slope, hilltop, or ridgeline, other than an exempt activity as defined herein, without a Steep Slopes Permit issued in conformance with these regulations.

In order to protect the stability of slopes and to ensure the safety of residents, construction activities on steep slopes shall be minimized and shall follow the standards for grading set forth herein.

Construction activities shall not be permitted on very steep slopes unless there is no viable alternative.

Exempt activities. The following activities shall be exempt from provisions of this chapter:

Any customary landscaping, provided that any such activity conforms to all other applicable laws of the Village of Mt. Kisco.

Repair of existing structures with no increase in any physical dimension.

Standards for development approval. In denying, granting, or granting with modifications any application for a steep slopes permit, the Planning Board shall consider the consistency of the proposed activity with the following standards:

Disturbance and construction activities on very steep slopes shall not be permitted unless there is no viable alternative.

Disturbance of areas with steep slopes shall be in conformance with the following provisions:

The planning, design and development of buildings shall provide the maximum in structural safety and slope stability while adapting the affected site to, and taking advantage of, the best use of the natural terrain and aesthetic character.

The terracing of building sites shall be kept to an absolute minimum. The construction of retaining walls greater than six feet in height or 60 feet in length shall not be permitted unless there is no viable alternative.

Roads and driveways shall follow the natural topography to the greatest extent possible in order to minimize the potential for erosion and shall be consistent with other applicable regulations of the Village of Mt. Kisco and current engineering practices.

Replanting shall consist of vegetation intended to further slope stabilization with a preference for indigenous woody and herbaceous vegetation.

[e]

When development activities are proposed to occur on hilltops or ridgelines, the plans submitted for review shall demonstrate that the impacts on the functions, aesthetics and essential characteristics of such areas are effectively minimized and mitigated. The natural elevations and vegetative cover of ridgelines shall be disturbed only if the crest of a ridge and the tree line at the crest of the ridge remains uninterrupted and shall not be permitted unless there is no viable alternative. This may be accomplished either by positioning buildings and areas of disturbance below a ridgeline or hilltop or by positioning buildings and areas of disturbance at a ridgeline or hilltop so that the elevation of the roof line of the building is no greater than the elevation of the natural tree line. However, under no circumstances shall more than 50 feet along a ridgeline, to a width of 50 feet generally centered on a ridgeline, be disturbed.

[f]

Any regrading shall blend in with the natural contours and undulations of the land.

[g]

Cuts and fills shall be rounded off to eliminate sharp angles at the top, bottom, and sides of regraded slopes.

[h]

The angle of cut and fill slopes shall not exceed a slope of one vertical to two horizontal except where retaining walls, structural stabilization, or other methods acceptable to the Village Engineer are used, in which case the angle shall not exceed a slope of one vertical to three horizontal.

Tops and bottoms of cut and fill slopes shall be set back from structures a distance that will ensure the safety of the structures in the event of the collapse of the cut or fill slopes. Generally, such distance shall be considered to be six feet plus 1/2 the height of the cut or fill.

[j]

Disturbance of rock outcrops shall be by means of explosives only if labor and machines are not effective and only if rock blasting is conducted in accordance with all applicable regulations of the Village of Mt. Kisco and the State of New York.

[k]

Disturbance of steep slopes shall be undertaken in workable units in which the disturbance can be completed and stabilized in one construction season so that areas are not left bare and exposed during the winter and spring thaw periods (December 15 to April 15).

[l]

Disturbance of existing vegetative ground cover shall not take place more than 15 days prior to grading and construction.

[m]

Temporary soil stabilization, including, if appropriate, temporary stabilization measures such as netting or mulching to secure soil during the grow-in period, must be applied to an area of disturbance within two days of establishing the final grade, and permanent stabilization must be applied within 15 days of establishing the final grade.

[n]

Soil stabilization must be applied within two days of disturbance if the final grade is not expected to be established within 21 days. In locations where construction activities have temporarily ceased, temporary soil stabilization measures must be applied within one week.

[o]

Topsoil shall be stripped from all areas of disturbance, stockpiled and stabilized in a manner to minimize erosion and sedimentation, and replaced elsewhere on the site at the time of final grading. Stockpiling shall not be permitted on slopes of greater than 10%.

[p]

No organic material or rock with a size that will not allow appropriate compaction or cover by topsoil shall be used as fill material. Fill material shall be no less granular than the soil upon which it is placed, and shall drain readily.

[q]

Compaction of fill materials in fill areas shall be such to ensure support of proposed structures and stabilization for intended uses.

[r]

Structures shall be designed to fit into the hillside rather than altering the hillside to fit the structure. (Among the methods that may be employed to achieve this goal are reduced footprint design, "step-down" structures, stilt houses, minimization of grading outside the building footprint, placement of structures at minimum street setback requirements to preserve natural terrain, etc.).

[s]

Development shall be sited on the least sensitive portions of the site to preserve the natural landforms, geological features, and vegetation.

[t]

The stability of slopes and the erodibility of soils on slopes is a function of various physical soil properties and underlying bedrock conditions. Where site surveys indicate the presence of soils or underlying bedrock conditions the physical properties of which might present limitations on construction practices or high erodibility that may result in unstable slopes, the Planning Board may limit the type and extent of construction activities or disturbance to these areas as necessary to ensure public health, safety, and welfare.

[u]

Impacts from construction activities or other disturbance on bedrock outcrops and glacial erratics shall be minimized.

[v]

All measures for the control of erosion and sedimentation shall be undertaken consistent with this chapter and with the Westchester County Soil and Water Conservation District's "Best Management Practices Manual for Erosion and Sediment Control," and New York State Department of Environmental Conservation "Guidelines for Urban Erosion and Sediment Control", as amended, or its equivalent satisfactory to the Planning Board, whichever requires the higher standards.

[w]

All proposed disturbance of steep slopes shall be undertaken with consideration of the soils limitations characteristics contained in the Identification Legend, Westchester County Soils Survey, 1989, as prepared by the Westchester County Soil and Water Conservation District, in terms of recognition of limitation of soils on steep slopes for development and application of all mitigating measures, and as deemed necessary by the Planning Board.

Permit procedures.

Application for permit. An application for a steep slopes permit shall be filed with the Planning Board, and shall contain the following information and such other information as required by it, except when waived by the Planning Board as not pertinent or necessary for the proposed disturbance:

Name, post office address and telephone number of the owner and applicant.

Street address and Tax Map designation of property covered by the application.

Statement of authority from owner for any agent making application.

Listing of property owners adjacent to, across streets from, and downslope within 500 feet of the property, and any additional property owners deemed appropriate by the Planning Board.

[e]

Statement of proposed work and purpose thereof.

[f]

A statement prepared by a licensed architect, registered landscape architect, or engineer, that describes:

The methods to be used in overcoming foundation and other structural problems created by slope conditions, in preserving the natural watershed and in preventing soil erosion; and

The methods to be used to eliminate or mitigate water runoff on all adjacent properties and any other property that will be naturally affected by increased water runoff.

[g]

A statement made under the seal of a licensed professional engineer certifying that:

The proposed activity will disturb the steep slope area to the minimum extent practicable; and

The proposed mitigation measures will prevent, to the maximum extent practicable, the adverse effect of any disturbance of the steep slope area on the environment and any neighboring properties.

[h]

Eleven copies of plans for the proposed regulated activities drawn to a scale of not less than one inch equals 50 feet (unless otherwise specified by the Planning Board). Such plans shall be sealed and show the following:

Location of proposed construction or disturbance and its relationship to property lines, easements, buildings, roads, walls, sewage disposal systems, wells, and wetlands within 100 feet of the proposed construction or disturbance, unless a greater distance is deemed appropriate by the Planning Board.

Estimated material quantities of excavation/fill.

[iii]

Location and size of areas of soils by soils types in the area of proposed disturbance and to a distance of 100 feet surrounding the area of disturbance.

[iv]

Existing and proposed contours (NGVD, National Geodetic Vertical Datum) at two-foot intervals in the area of proposed disturbance and to a distance of 100 feet beyond.

[v]

Slope categories for the entire project site itself showing at minimum the steep slope and very steep slope categories. Slope is to be determined from on-site topographic surveys prepared with a two-foot contour interval. The vertical rise is to be measured, on the basis of two-foot contours, in a ten-foot horizontal length.

[vi]

Cross sections of steep slope areas proposed to be disturbed.

[vii]

Retaining walls or like constructions, with details of construction.

[viii]

Erosion and sedimentation control plan prepared in accordance with the requirements listed above in Subsection A(2)(c)[2][k] through [o]. These plans must be submitted under the seal of a licensed professional engineer and must show and certify the following:

[A]

All existing and proposed natural and artificial drainage courses and other features for the control of drainage, erosion and water.

[B]

The calculated volume of water runoff from the slope(s) and from the lot in question, as unimproved.

[C]

The calculated volume of water runoff from the slope(s) and from the lot in question, as improved.

[D]

The existence, location and capacity of all natural and artificial drainage courses and facilities within 500 feet of the lot, which are or will be used to carry or contain water runoff to and from the slopes(s) and the lot.

If required by the Planning Board, a detailed monitoring program, including but not necessarily limited to written status reports at specified intervals documenting activities undertaken pursuant to a permit.

[j]

A list of all applicable county, state or federal permits that are required for such work or improvements.

[k]

An application fee in the amount set forth in a fee schedule established by the Village Board.

[l]

Other details, including specific reports by qualified professionals on soils, geology and hydrology, and borings and/or test pits, as may be determined to be necessary by the Planning Board.

Application review. The Planning Board may hire professionals to review a steep slopes permit application at the sole expense of the applicant, as part of its powers also enumerated in § 110-45C(8) of this chapter.

Notice and public hearing. The Planning Board shall not decide on any application for a steep slopes permit without first holding a public hearing, notice of which hearing, including the substance of the application, shall be given by publication in the official newspaper of the Village at least 15 days before the date of such hearing. In addition to such published notice, the applicant shall cause such notice to be mailed at least 10 days before the hearing to all owners of property which lies within 300 feet of the property for which approval is sought and to such other owners and by such other means of notification as the Planning Board may deem advisable.

[Amended 12-28-2009 by L.L. No. 7-2009]

Action by the Planning Board. A determination shall be made to approve, approve with modifications and conditions, or disapprove the application within 60 days of closure of the public hearing. In approving any application the Planning Board may impose such conditions or limitations as it determines necessary to ensure compliance with the intent, purposes and standards of this chapter.

Duration of permit.

Activities specified by the steep slopes permit shall be undertaken pursuant to the provisions of this chapter and any conditions of the permit and shall be completed according to any schedule set forth in the permit.

A steep slopes permit shall expire on the completion of the activities specified and shall be valid for a period of one year from the date of approval, or for the period of any other permit or approval issued by the Planning Board.

A permit may be renewed by the Planning Board for a period of up to one year.

Security. In granting a permit, the Planning Board shall require a security in an amount and with surety and conditions sufficient to insure its compliance with the conditions and limitations set forth in the permit.

Inspection and monitoring.

The Planning Board may inspect, or cause to be inspected by its representative, activities pursuant to a permit so as to ensure satisfactory completion at the sole expense of the applicant.

The Planning Board may require that the applicant submit for approval a detailed monitoring program, including but not necessarily limited to written status reports at specified intervals documenting activities undertaken pursuant to a permit.

The Planning Board may require that the activities undertaken pursuant to a permit be supervised by an appropriate licensed professional at the sole expense of the applicant.

Violations; penalties.

Notice of violation. Any person found violating any provision of this chapter or the terms and conditions of any permit granted hereunder shall be served with a written notice stating the nature of the violation and providing a specific time for the satisfactory correction thereof, which time shall not be less than five days.

Stop order. The foregoing notwithstanding, if, in the judgment of either the Village Engineer or the Building Inspector, there is a violation of this chapter or any permit issued hereunder, then the Village Engineer or the Building Inspector may issue a written order to cease all work creating or causing said violation and directing the applicant to appear before the Planning Board at its next meeting. Upon the issuance of such an order and its delivery to the permit holder or his agent or contractor, the permit shall be deemed to have been suspended, and it shall be unlawful and a violation of this chapter to continue the permitted activity. The official issuing such an order shall rescind the order upon compliance with the permit and the taking of such corrective action as shall be determined by the permitting authority.

Administrative sanctions.

In addition to any penalties imposed under Chapter 1 of this Code, upon finding that an applicant or any person acting as an agent or contractor for the applicant has violated the terms of this chapter or any permit issued hereunder, the Planning Board may impose any one or more of the following sanctions for each and every such violation:

Revocation of the permit.

Direction to restore the affected area within a reasonable time to its condition prior to the violation, insofar as that is possible.

[iii]

Imposition of any additional conditions on the permit as may be reasonably necessary to effectuate the restoration of the affected area and/or prevent the recurrence of the violation.

Any restoration directed by the Planning Board that is not completed as required may be completed by the Village at the sole cost and expense of the applicant, pursuant to Chapter 92 of this Code.

Wetlands.

Development limitations. To protect environmentally sensitive lands, preserve the Village's natural resources, and promote the orderly development of land, development on parcels that contain wetlands and waterways, which parcel on the effective date of this chapter is in excess of 40,000 square feet and is in single, undivided ownership, shall be limited by deducting the following from the gross lot area of such parcels to determine the net lot area (in conjunction with § 110-33.1A(1) herein:

Fifty percent of the area of all wetlands.

One hundred percent of the area of all lakes, ponds, streams and other such bodies of water.

Development on parcels that contain any wetlands or waterways shall comply with Chapter 107, Wetlands and Drainage Control.

Tree preservation. Any application for site plan or subdivision approval shall comply with Chapter 99, Tree Preservation.

§ 110-33.2 Solar energy.

[Added 11-19-2018 by L.L. No. 6-2018; amended 8-11-2025 by L.L. No. 1-2025]

Authority. This solar energy section is adopted pursuant to §§ 7-700 through 7-704 of the Village Law, and § 20 of the Municipal Home Rule Law of the State of New York, which authorize the Village/Town of Mount Kisco to adopt zoning provisions that advance and protect the health, safety and welfare of the community, and, in accordance with the Village and Town law of New York State, "to make provision for, so far as conditions may permit, the accommodation of solar energy systems and equipment and access to sunlight necessary therefor."

Statement of purpose. This solar energy section is adopted to advance and protect the public health, safety, and welfare of the people of the Village by creating regulations for the installation and use of solar energy generating systems and equipment, with the following objectives:

To take advantage of a safe, abundant, renewable and nonpolluting energy resource;

To decrease the cost of electricity to the owners of residential and commercial properties, including single-family houses;

To increase employment and business development in the Village, to the extent reasonably practical, by furthering the installation of solar energy systems;

To mitigate the impacts of solar energy systems on environmental resources such as forests, wildlife and other protected resources;

To create synergy between solar and the stated goals of the community pursuant to its Comprehensive Plan, such as the protection of environmental resources, assuring that community services sufficiently meet the needs of the Village's current and future population, and promote a balanced pattern of future land use;

To invest in a locally generated source of energy and to increase local economic value, rather than importing nonlocal fossil fuels;

To align the laws and regulations of the community with several policies of the State of New York, particularly those that encourage distributed energy systems;

To diversify energy resources to decrease dependence on the grid;

To make the community more resilient during storm events; and

Applicability.

The requirements of this section shall apply to all solar energy systems permitted, installed, or modified in the Village of Mount Kisco after the effective date of this section, excluding general maintenance and repair.

Legally authorized solar energy systems constructed or installed prior to the effective date of this section shall not be required to meet the requirements of this section.

Modifications to an existing solar energy system that increase the solar energy system area by more than 20% of the original area of the solar energy system (exclusive of moving any fencing) or fail to comply with zoning shall be subject to this section.

All solar energy systems shall be designed, erected, and installed in accordance with all applicable codes, regulations, and industry standards as referenced in the NYS Uniform Fire Prevention and Building Code ("Building Code"), the NYS Energy Conservation Code ("Energy Code"), and the Code of the Village/Town of Mount Kisco ("Village Code").

General requirements.

A building permit shall be required for installation of all solar energy systems.

Issuance of permits and approvals by the Planning Board shall include review pursuant to the State Environmental Quality Review Act ECL Article 8 and its implementing regulations at 6 NYCRR Part 617 ("SEQRA").

Unless specifically superseded herein, all other chapters of this Code and any other applicable county, state or federal law or regulation shall apply.

The Building Inspector or the Planning Board shall have the discretionary authority to call upon any department, agency or employee of the Village for such assistance as shall be deemed necessary, including but not limited to the Fire Department, and emergency service providers, for reviews and recommendations.

Permitting requirements for Tier 1 solar energy systems.

All Tier 1 solar energy systems shall be permitted in all zoning districts and shall be exempt from site plan review under the local zoning code or other land use regulation, subject to the following conditions for each type of solar energy system:

Roof-mounted solar energy systems.

Roof-mounted solar energy systems on buildings shall incorporate the following design requirements:

Solar panels on pitched roofs shall be mounted with a maximum distance of eight inches between the roof surface the highest edge of the system.

Solar panels on pitched roofs shall be installed parallel to the roof surface on which they are mounted or attached.

Solar panels on pitched roofs shall not extend higher than the highest point of the roof surface on which they are mounted or attached.

Solar panels on flat roofs shall not extend above the top of the surrounding parapet, or more than 24 inches above the flat surface of the roof, whichever is higher.

Glare: All solar panels shall have anti-reflective coating(s).

Height: All roof-mounted solar energy systems shall comply with the height limitations in the underlying zoning district. If the installation is proposed to an existing building whose height already meets or exceeds the maximum building height, the system may be installed above the existing maximum roof height but not to exceed 24 inches above the existing maximum height.

Building-integrated solar energy systems shall be shown on the plans submitted for the building permit application for the building containing the system.

Tier one solar energy systems may also be installed on the roof of an accessory structure provided that collectively such panels shall not exceed 750 square feet and shall comply with zoning requirements for accessory structures.

Permitting requirements for Tier 2 solar energy systems. (Reserved)

Permitting requirements for Tier 3 solar energy systems. All Tier 3 solar energy systems are permitted through the issuance of a special use permit and site plan approval within the Conservation Development District (CD), Preservation District (PD), Limited Commercial District (CL), General Commercial District (GC), General Retail District (GR), Hospital District (H), Light Manufacturing District (ML), Low-Intensity Office District (OD), General Office District (OG), Central Business District - 1 (CB-1), Central Business District - 2 (CB-2), Recreation District (R), Research and Development District (RD), and Service Commercial District (SC) zoning districts. All such Tier 3 solar energy systems shall be subject to the underlying zoning restrictions in the district in which they are proposed as set forth within this chapter.

Applications for the installation of Tier 3 solar energy system shall be subject to all rules, referrals, procedures and requirements applicable to special permit and site plan applications.

Underground requirements. All on-site utility lines shall be placed underground to the extent feasible and as permitted by the serving utility, with the exception of the main service connection at the utility company right-of-way and any new interconnection equipment.

Vehicular paths. Vehicular paths within the site shall be designed to minimize the extent of impervious materials and soil compaction.

Signage.

No signage or graphic content shall be displayed on the solar energy systems except the manufacturer's name, equipment specification information, safety information, and twenty-four-hour emergency contact information. Said information shall be depicted on the smallest sign feasible and in no case shall the sign be of an area greater than six square feet.

As required by National Electric Code (NEC), disconnect and other emergency shutoff information shall be clearly displayed on a light reflective surface. A clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations.

Glare. All solar panels shall have anti-reflective coating(s).

Lighting. Lighting of the solar energy systems shall be limited to that minimally required for safety and operational purposes and shall be reasonably shielded and downcast from abutting properties.

Tree-cutting. Removal of existing trees larger than eight inches in diameter should be minimized to the extent practicable and a mitigation/replanting plan shall be required on and/or off site pursuant to Chapter 99. Mitigation shall be determined based upon the area of disturbance as determined by the Planning Board. In determining any replanting or replacement, the Planning Board may require a pollinator-friendly habitat as an additional means of mitigation.

Decommissioning.

Solar energy systems that have been abandoned and/or not producing electricity for a period of one year shall be removed at the owner's and/or operator's expense.

A decommissioning plan (see Appendix 1)[1] signed by the owner and/or operator of the solar energy system shall be submitted by the applicant, addressing the following:

The cost of removing the solar energy system.

The time required to decommission and remove the solar energy system and any ancillary structures.

The time required to repair any damage caused to the property by the installation and removal of the solar energy system.

A tree restoration plan, restoring the decommissioned area to a condition similar to the condition that existed prior to the installation, recognizing that mature plantings cannot be easily relocated, the Planning Board may exercise discretion in determining the number, caliper, type and location of plantings in reviewing any such plan, but all plantings shall be native noninvasive species.

Editor's Note: Appendix 1 is included as an attachment to this chapter.

Security/lien. In the event of default upon performance of such decommissioning, after proper notice, the Village shall be entitled to arrange for removal or decommissioning and the cost of same shall constitute a lien on the owner's real property.

Site plan application. For any solar energy system requiring a special use permit, site plan approval shall be required. Any site plan application shall, in addition to the material required by § 110-45, include the following information:

Property lines and physical improvements and features, including driveways, roads, topography, and trees as taken from an updated survey for the project site.

Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures.

A one- or three-line electrical diagram detailing the solar energy system layout, solar collector installation, associated components, and electrical interconnection methods, with all National Electrical Code-compliant disconnects and over-current devices.

A preliminary equipment specification sheet that documents all proposed solar panels, significant components, mounting systems, and inverters that are to be installed. A final equipment specification sheet shall be submitted prior to the issuance of building permit.

Name, address, and contact information of proposed or potential system installer and the owner and/or operator of the solar energy system. Such information of the final system installer shall be submitted prior to the issuance of building permit.

Name, address, phone number, and signature of the project applicant, as well as all the property owners, demonstrating their consent to the application and the use of the property for the solar energy system.

Property operation and maintenance plan. Such plan shall describe continuing photovoltaic maintenance and property upkeep, such as mowing and trimming.

Erosion and sediment control and stormwater management plans prepared to New York State Department of Environmental Conservation standards, if applicable, and to such standards as may be established by the Planning Board.

Any additional information required by the Planning Board based upon the on-site conditions.

(10)

Special use permit standards.

Lot size. The property on which the Tier 3 solar energy system is placed shall meet the lot size requirements of the underlying zoning district.

Setbacks. The Tier 3 solar energy systems shall comply with the following setback requirements:

In all nonresidential districts, each Tier 3 solar energy system shall, at a minimum, a) satisfy the setbacks requirements of the underlying zoning district for principal structures, and b) shall not be set back less than the maximum height of the system;

In all residential districts, each Tier 3 solar energy system shall, at a minimum, a) satisfy the setback provisions as expressly provided in said district, and b) shall not be set back less than the maximum height of the system. Where the Planning Board determines that, consistent with the stated purpose and intent of the underlying district, an alternate layout would better protect and preserve existing topography, wetlands, steep slopes and view sheds, the Planning Board may increase such setback requirements and require supplemental methods of screening through earth berms, landscaping and other such treatments, or such other condition which provides for a better layout.

Height. The Tier 3 solar energy system shall not exceed 15 feet in height in residential districts and shall not exceed 20 feet in nonresidential districts, except that the Planning Board, in its discretion, may alter same to accommodate vehicle clearance for carports. For purposes of determining height structures shall be subject to the definition of "structure height" in § 110-59.

Development coverage.

The following components of a Tier 3 solar energy system shall be considered included in the calculations for development coverage requirements:

Foundation systems, typically consisting of driven piles or monopoles or helical screws with or without small concrete collars.

All mechanical equipment of the solar energy system, including any pad-mounted structures.

The horizontal surface area of all panels, arrays, fencing and other components of the Tier 3 solar energy system.

Access roads servicing the solar energy system.

Development coverage of the Tier 3 solar energy system, as defined above, shall be restricted as follows:

In all nonresidential districts, no lot shall exceed the maximum lot development coverage requirement of the underlying zoning district, inclusive of any development coverage derived from solar energy systems.

In all residential districts, each lot shall comply with the designated maximum lot development coverage requirement of the underlying zoning district, and shall not occupy more than 35% of the net lot area.

Fencing requirements. All mechanical equipment shall be enclosed and secured as required by NEC and the Planning Board, with a self-locking gate to prevent unauthorized access.

Screening, visibility, and habitat. Solar energy systems shall be required to:

Conduct a visual assessment of the visual impacts of the solar energy system on public roadways and adjacent properties. At a minimum, a line-of-sight profile analysis shall be provided. Depending upon the scope and potential significance of the visual impacts, additional impact analyses, including for example a digital viewshed report, may be required to be submitted by the applicant.

Submit a screening and landscaping plan to show adequate measures to screen through landscaping, grading, or other means so that views of solar panels and solar energy equipment shall be minimized as reasonably practical from public roadways and adjacent properties to the extent feasible. The screening and landscaping plan shall specify the locations, elevations, height, plant species, and/or materials that will comprise the structures, landscaping, and/or grading used to screen and/or mitigate any adverse aesthetic effects of the system, following the applicable rules and standards established by the Village.

Tier 3 solar energy system owners shall develop, implement, and maintain native vegetation to the extent practicable pursuant to a vegetation management plan by providing native perennial vegetation and a foraging habitat beneficial to game birds, songbirds, and pollinators consistent with any requirements of the Agriculture and Markets Law. To the extent practicable, when establishing perennial vegetation and a beneficial foraging habitat, the owners shall use native plant species and seed mixes.

(11)

Ownership changes. If the owner or operator of the solar energy system changes or the owner of the property changes, the special use permit shall remain in effect, provided that the successor owner or operator assumes in writing all of the obligations of the special use permit, site plan approval, and decommissioning plan.

Safety.

Solar energy systems and solar energy equipment shall be certified under the applicable electrical and/or building codes as required.

Solar energy systems, and access to same, shall be maintained in good working order, in accordance with industry standards, and as may be specified or required by the Planning Board.

Permit time frame and abandonment.

The special use permit and site plan approval for a solar energy system shall be subject to commencement of construction within 12 months from the date of site plan approval. In the event construction is not completed in accordance with the final site plan, as may have been amended and approved, as required by the Planning Board, within 12 months after commencement of construction, the Planning Board, upon prior written application of the applicant, may extend the time to complete construction for an additional six months. If the applicant fails to achieve substantial completion after 24 months, the approvals shall expire.

Upon cessation of electricity generation of a solar energy system on a continuous basis for 12 months, the Village may notify and instruct the property owner and operator of the solar energy system to implement the decommissioning plan. The decommissioning plan must be completed within 360 days of notification.

If the owner and/or operator fails to comply with decommissioning upon any abandonment, the Village may remove of the solar energy system, restore the site in accordance with the decommissioning plan and place a lien on the property for the cost of such undertaking.

§ 110-33.3 Personal wireless service facilities.

If, at the time of decommissioning, the property owner desires to pursue a utilization of the area different from the restoration set forth in the decommissioning plan, said owner shall pursue a site plan amendment in a timely fashion so that the application, approval and implementation may all be completed before the expiration of the three-hundred-sixty-day period referenced in Subsection I(2). Said application shall comply with then existing zoning regulations.

Enforcement. Any violation of this solar energy section shall be subject to the same enforcement requirements, including the civil and criminal penalties, provided for in the zoning or land use regulations of Village.

Severability. The invalidity or unenforceability of any section, subsection, paragraph, sentence, clause, provision, or phrase of the aforementioned sections, as declared by the valid judgment of any court of competent jurisdiction to be unconstitutional, shall not affect the validity or enforceability of any other section, subsection, paragraph, sentence, clause, provision, or phrase, which shall remain in full force and effect.

[Added 8-11-2025 by L.L. No. 2-2025]

This new § 110-33.3 is intended to repeal and replace all previous versions of, and amendments to, § 110-27.1H of the Code of the Town/Village of Mount Kisco ("Village Code"), all of which are hereby repealed and replaced in their entirety by this § 110-33.3 et seq., as of the effective date hereof.

No personal wireless service facility (PWSF) as such terms defined in § 110-3.3C shall be sited, constructed, reconstructed, installed, materially changed or altered, expanded, replaced or used unless in conformity with this section.

For the installation, construction, erection, relocation, substantial expansion, or material alteration of any PWSF, the Village shall require a special permit pursuant to the provisions of this section, which shall be applied for in accord with the procedure set forth in § 110-46 unless otherwise provided herein below.

The performance of maintenance, routine maintenance, in-kind replacement of components, and/or repairs (as defined herein) with no expansion to an existing PWSF and/or existing personal wireless service equipment shall not require a special permit.

Each application for a special permit under this section and each individual PWSF for which an application for a special permit is submitted shall be considered based upon the individual characteristics of each respective installation at each proposed location as an individual case. In other words, each installation, at each proposed location, shall be reviewed and considered independently for its own characteristics and potential impacts, irrespective of whether the proposed facility is designed and intended to operate independently or whether the installation is designed and/or intended to operate jointly as part of a distributed antenna system.

Purpose and legislative intent.

The purpose of this section is to promote the health, safety, and general welfare of the residents of the Village of Mount Kisco and to preserve the scenic, historical, natural, and man-made character and appearance of the Village while simultaneously providing standards for the safe provision, monitoring, development, replacement, and removal of cell towers and other personal wireless service facilities consistent with applicable federal, state and local laws and regulations.

Consistent with the balancing of interests which the United States Congress intended to embed with the federal Telecommunications Act of 1996[1] (hereinafter "the TCA"), § 110-33.3 is intended to serve as a smart planning provision, designed to achieve the four simultaneous objectives of: (a) enabling personal wireless service providers to provide adequate personal wireless services throughout the Village so that Village residents can enjoy the benefits of same, from any FCC-licensed wireless carrier from which they choose to obtain such services, while (b) minimizing the number of cell towers and/or other personal wireless service facilities needed to provide such coverage, (c) preventing, to the greatest extent reasonably practical, any unnecessary adverse impacts upon the Village's communities, residential areas, residents, and individual homes, and (d) complying with all of the legal requirements which the TCA imposes upon the Village, when the Village receives, processes and determines applications seeking approvals for the siting, construction, replacement, and operation of cell towers and/or other personal wireless service facilities.

Editor's Note: See 47 U.S.C.A. § 609 et seq.

The Village seeks to minimize, to the greatest extent possible, any unnecessary adverse impacts caused by the siting, placement, physical size, and/or unnecessary proliferation of, personal wireless service facilities, including, but not limited to, adverse aesthetic impacts, adverse impacts upon property values, adverse impacts upon the character of any surrounding properties and communities, adverse impacts upon historical and/or scenic properties and districts, and the exposure of persons and property to potential dangers such as structural failures, ice fall, debris fall, and fire among others, known and unknown.

The Village also seeks to ensure that, in applying this section, the Planning Board ("Board") or the Village Board of Trustees if relevant ("Trustees") is vested with sufficient authority to require applicants to provide sufficient, accurate, and truthful probative evidence, to enable the Board or Trustees to render factual determinations consistent with both the provisions set forth herein below and the requirements of the TCA when rendering decisions upon such applications.

ACCESSORY FACILITY or ACCESSORY STRUCTURE

To achieve the objectives stated herein, the Village seeks to employ the "General Authority" preserved to it under Section 47 U.S.C.A. § 332(c)(7)(A) of the TCA to the greatest extent which the United States Congress intended to preserve those powers to the Village, while simultaneously complying with each of the substantive and procedural requirements set forth within the subsection 47 U.S.C.A. § 332(c)(7)(B) of the TCA.

Definitions; word usage. For purposes of this section, 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. The definitions set forth for the purposes of this section only herein shall supersede any definitions set forth within the Village's Zoning Law, and the definitions set forth herein below shall control and apply to § 110-33.3 and all subsections herein.

A facility or structure serving or being used in conjunction with a personal wireless services facility or complex and located on the same property or lot as the personal wireless services facility or complex, or an immediately adjacent lot including, but not limited to, utility or transmission equipment storage sheds or cabinets.

ACHP

The Federal Advisory Council on Historic Preservation.

ADEQUATE COVERAGE

As determined by the Planning Board, adequate coverage means that a specific wireless carrier's personal wireless service coverage is such that the vast majority of its customers can successfully use the carrier's personal wireless service the vast majority of the time, in the vast majority of the geographic locations within the Village, that the success rate of using their devices exceeds 97%, and that any geographic gaps in a carrier's gaps in personal wireless services are not significant gaps, based upon such factors including, but not limited to, lack of significant physical size of the gap, whether the gap is located upon a lightly traveled or lightly occupied area, whether only a small number of customers are affected by the gap, and/or whether or not the carrier's customers are affected for only limited periods of time. A wireless carrier's coverage shall not be deemed inadequate simply because the frequency or frequencies at which its customers are using its services are not the most preferred frequency of the wireless carrier.

ANTENNA

An apparatus designed for the purpose of emitting radiofrequency (RF) radiation, to be operated or operating from a fixed location, for the provision of personal wireless service.

APPLICANT

Any individual, corporation, limited liability company, general partnership, limited partnership, estate, trust, joint-stock company, association of two or more persons having a joint common interest, or any other entity submitting an application for a special permit, site plan approval, variance, building permit, and/or any other related approval, for the installation, operation and/or maintaining of one or more personal wireless service facilities.

APPLICATION

Refers to all necessary and required documentation and evidence that an applicant must submit to receive a special permit, building permit, site plan or other approval for personal wireless service facilities from the Village.

BOARD

The Planning Board of the Village of Mount Kisco, or its designee pursuant to the Zoning Law.

CELLTOWER

A free-standing, guy-wired, or otherwise supported pole, tower, or other structure designed to support or employed to support, equipment and/or antennas used to provide personal wireless services, including, but not limited to, a pole, monopole, monopine, slim stick, lattice tower or other types of standing structures.

CEQ

The Council on Environmental Quality was established under NEPA.

CFR

The Code of Federal Regulations.

COLOCATION and/or CO-LOCATE

To install, mount or add new or additional equipment to be used for the provision of personal wireless services to a pre-existing structure, facility, cell tower, or complex which is already built and is currently being used to provide personal wireless services, by a different provider of such services, wireless carrier or site developer.

COMPLETE APPLICATION, COMPLETED APPLICATION

An application that contains all the necessary and required information, records, evidence, reports, 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 section and the Building Inspector, Planning Board, Trustees, or the Village's expert or consultant or the Board determines, based upon information provided, that any additional, further or clarifying information is needed, then the application will be deemed incomplete until that further or clarifying information is provided to the satisfaction of the Building Inspector, Planning Board, Trustees, or the Village's expert or consultant of the Board.

COMPLEX

The entire site or facility, including all structures and equipment, located at the site.

DBM (dBm)

DBM stands for decibel milliwatts, which is a concrete measurement of the wireless signal strength of wireless networks. Signal strengths are recorded in negative numbers, and can range from approximately -30 dBm to - 110 dBm. The closer the number is to zero, the stronger the cell signal.

DEPLOYMENT

The placement, construction, replacement, or substantial modification of a personal wireless service facility.

DISTRIBUTED ANTENNA SYSTEM, DAS

A network of spatially separated antenna nodes connected to a common source via a transport medium that provides personal wireless service within a geographic area.

EFFECTIVE PROHIBITION

A finding by the Board that, based upon an applicant's submission of sufficient probative, relevant, and sufficiently reliable evidence, and the appropriate weight which the Board deems appropriate to afford same, an applicant has established that an identified wireless carrier does not have adequate coverage as defined hereinabove, but suffers from a significant gap in its personal wireless services within the Village and that a proposed installation by that applicant would be the least intrusive means of remedying that gap, such that a denial of the application to install such facility would effectively prohibit the carrier from providing personal wireless services within the Village. Any determination of whether an applicant has established, or failed to establish, both the existence of a significant gap and whether its proposed installation is the least intrusive means of remedying such gap, shall be based upon substantial evidence, as is hereinafter defined.

ELEVENTH HOUR SUBMISSIONS

An applicant's submission of new and/or additional materials in support of an application within 48 hours of the expiration of an applicable shot clock, or at an otherwise unreasonably short period of time before the expiration of the shot clock, making it impracticable for the Planning Board, or its designees, to adequately review and consider such submissions due to their complexity, volume, or other factors, before the expiration of the shot clock.

ENURE

To operate or take effect. To serve to the use, benefit, or advantage of a person or party.

EPA

The United States Environmental Protection Agency.

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, and related fencing or wall surrounding the facility.

FCC

The Federal Communications Commission.

GENERAL POPULATION/UNCONTROLLED EXPOSURE LIMITS

The applicable radiofrequency radiation exposure limits set forth within 47 CFR 1.1310(e)(1), Table 1 Section (ii), made applicable pursuant to 47 CFR 1.1310(e)(3).

HEIGHT

When referring to a tower, cell tower, personal wireless service facility, or personal wireless service facility structure, the height shall mean the distance measured from the pre-existing grade level to the highest point on the tower, cell tower, facility, or structure, including, but not limited to, any accessory, fitting, fitment, extension, addition, add-on, antenna, whip antenna, lightning rod or other types of lightning-protection devices attached to the top of the structure.

HISTORIC STRUCTURE

Any structure that is either listed on the National Register of Historic Places, or is eligible for inclusion in the National Register of Historic Places under 36 CFR 63.1.

ILLEGALLY EXCESSIVE RF RADIATIONS or ILLEGALLY EXCESSIVE RADIATION

RF radiation emissions at levels that exceed the legally permissible limits set forth within 47 CFR 1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR 1.1310(e)(3).

IN-KIND REPLACEMENT

The replacement of a malfunctioning component(s) with a properly functioning component of substantially the same weight, dimensions, and outward appearance.

MACROCELL

A cellular base station that typically sends and receives radio signals from large towers and antennas. These include traditionally recognized cell towers, which typically range from 50 to 199 feet in height.

MAINTENANCE or ROUTINE MAINTENANCE

Plumbing, electrical or mechanical work that may require a building permit but that does not constitute a modification to the personal wireless service facility. 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 provisions of this section and FCC requirements.

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 workable choice between or among alternatives or options is not a need or a necessity.

NEPA

The National Environmental Policy Act, 42 U.S.C. § 4321 et seq.

NHPA

The National Historic Preservation Act, 54 U.S.C. § 300101 et seq, and 36 CFR Part 800 et seq.

NODE, DAS NODE

A fixed antenna and related equipment installation that operates as part of a system of spatially separated antennas, all of which are connected through a medium through which they work collectively to provide personal wireless services, as opposed to other types of personal wireless facilities, such as macrocells, which operate independently.

NOTICE ADDRESS

An address, which is required to be provided by an applicant at the time it submits an application for a special permit, at which the Village, Planning Board and/or Building Inspector can mail notice, and the mailing of any notice to such address by first-class mail shall constitute sufficient notice to any and all applicants, co-applicants, and/or their attorneys, to satisfy any notice requirements under this section, as well as any notice requirements of any other local, state and/or federal law.

NOTICE OF EFFECTIVE PROHIBITION CONDITIONS

A written notice which is required to be provided to the Village at the time of the filing of any application, by all applicants seeking any approval, of any type, for the siting, installation and/or construction of a PWSF, wherein the respective applicant asserts, claims or intends to assert or claim, that a denial of their respective application, by any agent, employee, board or body of the Village, would constitute an "effective prohibition" within the meaning of the TCA, and concomitantly, that a denial of their respective application or request would violate 47 U.S.C. § 332(c)(7)(B)(i)(II) of the TCA.

NOTICE OF INCOMPLETENESS, NOTICE OF INCOMPLETE APPLICATION

A written notice, mailed by first-class mail, to an applicant seeking an approval for the installation of a PWSF, wherein the sender advises the applicant that its application is either incomplete, the wrong type of application, or is otherwise defective, and setting for the reason or reasons why the application is incomplete and/or defective.

OCCUPATIONAL/CONTROLLED EXPOSURE LIMITS

The applicable radiofrequency radiation exposure limits set forth within 47 CFR 1.1310(e)(1), Table 1 Section (i), made applicable pursuant to 47 CFR 1.1310(e)(2).

PERSONAL WIRELESS SERVICE FACILITY or PWSF

A facility or facilities used for the provision of personal wireless services, within the meaning of 47 U.S.C. § 332(c)(7)(c)(ii). 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 or subsequent replacement technology to provide the same or similar service is located. This includes, without limitation, towers of all types and all kinds of support structures, including but not limited to buildings, church steeples, silos, water towers, signs, utility poles, or any other structure that is used or is proposed to be used as a structure for the placement, installation and/or attachment of 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 for the provision of personal wireless services.

PERSONAL WIRELESS SERVICE/PERSONAL WIRELESS SERVICES

Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, within the meaning of 47 U.S.C. § 332(c)(7)(c)(i), and as defined therein.

PERSONAL WIRELESS SERVICES FACILITIES OVERLAY DISTRICT or PWSFOD

The Personal Wireless Service Facilities Overlay District as set forth in § 110-2 and regulated by § 110-27.1.

PLANNING BOARD

The Planning Board of the Village of Mount Kisco which reviews all applications for special permits pursuant to its powers and procedure set forth in § 110-46.

PROBATIVE EVIDENCE

Evidence which tends to prove facts, and the more a piece of evidence or testimony proves a fact, the greater its probative value, as shall be determined by the Planning Board or Trustees, as the finder-of-fact in determining whether to grant or deny applications for special permits under this provision of the Village Code.

REPAIRS

The replacement or repair of any components of a wireless facility or complex where the replacement is substantially identical to the component or components 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.

Radiofrequency.

RF RADIATION

Radiofrequency radiation, that being electromagnetic radiation which is a combination of electric and magnetic fields that move through space as waves, and which can include both non-ionizing radiation and Ionizing radiation.

SECTION 106 REVIEW

A review under Section 106 of the National Historic Preservation Act.

SEQRA

The New York State Environmental Quality Review Act, 6 NYCRR Part 617 et seq.

SETBACK

For purposes of special permit applications, a setback shall mean the distance between: (a) any portion of a personal wireless facility and/or complex, including but not limited to any and all accessory facilities and/or structures, and related enclosures if any; and (b) the exterior line of any parcel of real property or part thereof which is owned by, or leased by, an applicant seeking a special permit to construct or install a personal wireless facility upon such real property or portion thereof. In the event that an applicant leases only a portion of real property owned by a landlord, the setback shall be measured from the facility to the line of that portion of the real property which is actually leased by the applicant, as opposed to the exterior lot line of the non-leased portion of the property owned by the landlord.

SHOT CLOCK

The applicable period which is presumed to be a reasonable period within which the Village is generally required to issue a final decision upon an application seeking special permit approval for the installation or substantial modification of a personal wireless services facility or structure, to comply with 47 U.S.C. § 332(c)(7)(B)(ii) of the TCA.

SHPO

The New York State Historic Preservation Office.

SITE DEVELOPER or SITE DEVELOPERS

Individuals and/or entities engaged in the business of constructing wireless facilities and wireless facility infrastructure and leasing space and/or capacity upon, or use of, their facilities and/or infrastructure to wireless carriers. Unlike wireless carriers, site developers generally do not provide personal wireless services to end-use consumers.

SMALL CELL

A fixed cellular base station that typically sends and receives radio signals and which are mounted upon poles or support structures, including buildings, at substantially lower elevations than macrocell facilities.

SMALL WIRELESS FACILITY (SWF)

A personal wireless service facility that meets all of the following criteria:

The facility does not extend the height of an existing structure to a total cumulative height of more than 50 feet, from ground level to the top of the structure and any equipment affixed thereto;

Each antenna associated with the deployment is no more than three cubic feet in volume;

All wireless equipment associated with the facility, including any pre-existing equipment and any proposed new equipment, cumulatively total no more than 28 cubic feet in volume;

The facility is not located on tribal land; and

STEALTH or STEALTH TECHNOLOGY

The facility will not result in human exposure to radiofrequency radiation in excess of the applicable FCC safety standards set forth within Table 1 of 47 CFR 1.1310(E)(1).

SPECIAL PERMIT

The official document or permit granted by the Planning Board or Village Board pursuant to which an applicant is allowed to file for and obtain a building permit to construct and use a personal wireless services facility, personal wireless service equipment, and/or any associated structures and/or equipment which are used to house, or be a part of, any such facility or complex, or to be used to provide personal wireless services.

STATE

The State of New York.

A design or treatment that minimizes adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and generally in the same area as the requested location of such personal wireless service facilities. This shall mean building the least visually and physically intrusive facility and complex under the facts and circumstances.

STRUCTURE

A pole, tower, base station, or other building, physical support of any form used for, or to be used for, the provision of personal wireless service.

SUBSTANTIAL EVIDENCE

Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence.

TCA

The Telecommunications Act of 1996, 47 U.S.C. § 332(c).

TOLLING or TOLLED

The pausing of the running of the time period permitted under the applicable shot clock for the respective type of application for a personal wireless services facility. Where a shot clock is tolled because an application has been deemed incomplete and timely notice of incompleteness was mailed to the applicant, the submission of additional materials by the applicant to complete the application will end the tolling, thus causing the shot clock period to resume running, or, in the case of Type III applications, shall cause the shot clock to reset, and begin running anew.

TOWER, TELECOMMUNICATIONS TOWER

Any structure designed primarily to support one or more antennas and/or equipment used or designed for receiving and/or transmitting a wireless signal.

UNDERTAKING

Any application for a special permit seeking approval for the installation of a personal wireless services facility licensed under the authority of the FCC shall constitute an undertaking within the meaning of NEPA, in accord with 42 CFR 137.289 and 36 CFR 800.16.

VILLAGE

The Village/Town of Mount Kisco.

VILLAGE CODE

The Code of the Village/Town of Mount Kisco, as the term has been defined in § 1-13 and codified in Article I, § 1-1.

WIRELESS CARRIERS or CARRIER

Companies that provide personal wireless services to end-use consumers.

ZBA

The Zoning Board of Appeals for the Village/Town of Mount Kisco.

ZONING LAW

The Village of Mount Kisco Zoning Law, as entitled under Chapter 110, adopted March 27, 1984, as amended.

Application types. There shall be four specific types of applications for special permits under this section, which shall include Type I, Type II, Type III, and Type IV applications. It shall be the obligation of any applicant to explicitly and correctly identify which type of application they are filing.

Type I applications colocations of small wireless facilities. Type I applications shall be limited to applications wherein an applicant seeks to co-locate a new small wireless facility, as defined in this section, by installing new personal wireless service equipment upon an already existing small personal wireless services facility structure. If the completed facility would still meet the physical limits and requirements to meet the definition of a small wireless facility after the installation of the new equipment, then the application to install such new equipment is a Type I application. Type I applications for co-location of a small wireless facility in all districts delineated in § 110-2 of the Zoning Law outside of the PWSFDO shall require an applicant to obtain a special permit from the Board. Type I applications for co-location of a small wireless facility within the PWSFDO shall be governed by § 110-27.1.

Type II applications colocations which do not meet the definition of a small wireless facility. Type II applications shall be limited to applications wherein an applicant is seeking to co-locate new personal wireless service equipment by installing such new wireless equipment upon an already existing personal wireless services facility structure, tower, or complex, which does not meet the definition of a small wireless facility or which will not meet the definition of a small wireless facility if and when the proposed new personal wireless service equipment is installed upon the existing facility and/or structure. Type II applications for co-location of personal wireless service facility equipment in all districts delineated in § 110-2 of the Zoning Law shall either be a permitted use with a building permit, or a special permit, as set forth below.

The co-location of personal wireless service facility equipment on a previously approved PWSF tower or PWSF structure on property within districts CB-1, CB-2, GR, CN, CL, OG, OD, OC, RDX, ML, SC, GC, H is a permitted use subject to the issuance of a building permit, provided that the Building Inspector determines that the proposed co-location will not:

Increase the approved height of the supporting structure by more than 15%;

Cause the original approved number of antennas to be exceeded by more than 50%;

Increase the original approved square footage of accessory buildings by more than 200 square feet;

Add new or additional microwave antenna dishes;

Expand the footprint of said support structure; or

Potentially cause significant adverse impacts on the existing support structure or the surrounding area; and

Structure can support additional load.

If the Building Inspector cannot make the findings above, or a Type II application is filed for property within any other district, special permit and site plan approvals will be required in accord with the provisions of the Zoning Law, and the Building Inspector shall refer the application to the Board, where it will be subject to the terms and conditions specified in the requirements and standards in this section as part of the special permit and site plan review process.

Type II applications within the PWSFDO shall be governed by § 110-27.1.

Type III applications new small wireless facilities. Type III applications shall be limited to applications seeking to install and/or construct a new small wireless facility as defined in § 110-3.3C hereinabove. Type III applications in all districts delineated in § 110-2 of the Zoning Law outside of the PWSFDO shall require an applicant to obtain a special permit from the Board. Type III applications within the PWSFDO shall be governed by § 110-27.1.

Type IV applications new towers and all other wireless facilities. Type IV applications shall include applications for the installation of a new telecommunications tower, personal wireless service facility, complex, structure, or equipment, which does not meet the criteria for Type I, Type II, or Type III applications. Type IV applications in all districts delineated in § 110-2 of the Zoning Law outside of the PWSFDO shall require an applicant to obtain a special permit and site plan approval from the Board. Type IV applications, within the PWSFDO shall be governed by § 110-27.1.

Shot clock periods. To comply with the requirements of 47 U.S.C. § 332(c)(7)(B)(ii) of the TCA, the following shot clock periods set forth herein below shall be presumed to be reasonable periods within which the Board shall render determinations upon special permit applications for personal wireless service facilities. The Board shall render determinations upon such applications within the periods set forth hereinbelow, unless the applicable shot clock period list below is tolled, extended by agreement or the processing of the application is delayed due to circumstances beyond the Board and/or Village's controls, as addressed within § 110-3.3P, Q, R, and S, hereinbelow.

Type I applications colocations of small wireless facilities 60 days.

Unless extended by agreement, tolled, or subject to reasonable delays, the Board shall issue a written decision upon a Type I application within 60 days from the date when the Village receives a Type I application.

Upon receipt of a Type I application, the Building Inspector shall review the application for completeness. If the Building Inspector determines the application is: (a) incomplete; (b) missing required application materials; (c) is the wrong type of application; or (d) is otherwise defective, then, within 10 days of the Village's receipt of the application, the Building Inspector, or their designee, shall mail the applicant a notice of incompleteness by first-class mail, to the notice address provided by the applicant.

Within such notice of incompleteness, the Building Inspector shall advise the applicant, with reasonable clarity, the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective.

The mailing of a notice of incomplete application by the Building Inspector shall toll the 60-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Building Inspector to remedy the issues the Building Inspector identified in the notice of incomplete application, which the Building Inspector had mailed to the applicant. The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running.

If upon receipt of any additional materials from the applicant, the Building Inspector determines that the application is still incomplete and/or defective, then the Building Inspector shall, once again, mail a notice of incompleteness within 10 days of the applicant having filed its supplemental or corrected materials to the Village and the shot clock shall once again be tolled, and the same procedure provided for hereinabove shall be repeated.

Type II applications colocations on existing towers, structures or other facilities which do not meet the definition of a small wireless facility 90 days.

Unless extended by agreement, tolled, or subject to reasonable delays, the Board shall issue a written decision upon a Type II application within 90 days from the date when the Village receives a Type II application.

Upon receipt of a Type II application, the Building Inspector shall review the application for completeness. If the Building Inspector determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within 30 days of the Village's receipt of the application, the Building Inspector, or their designee, shall mail the applicant a notice of incompleteness by first-class mail, to the notice address provided by the applicant.

Within such notice of incompleteness, the Building Inspector shall advise the applicant, with reasonable clarity of the defects within its application, including a description of such matters as what items are missing from the application and/or why the application is incomplete and/or defective.

The mailing of a notice of incomplete application by the Building Inspector shall toll the 90-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Building Inspector to remedy the issues the Building Inspector identified in the notice of incomplete application, which the Building Inspector had mailed to the applicant.

The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running.

If upon receipt of any additional materials from the applicant, the Building Inspector determines that the application is still incomplete and/or defective, then the Building Inspector shall, once again, mail a notice of incompleteness within 10 days of the applicant having filed its supplemental or corrected materials to the Village. The shot clock shall once again be tolled, and the same procedure provided hereinabove shall be repeated.

Type III applications new small wireless facilities 90 days.

Unless extended by agreement, tolled, or subject to reasonable delays, the Board shall issue a written decision upon a Type III application within 90 days from the date when the Village receives a Type III application.

Upon receipt of a Type III application, the Building Inspector shall review the application for completeness. If the Building Inspector determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within 10 days of the Village's receipt of the application, the Building Inspector, or their designee, shall mail the applicant a notice of incompleteness by first-class mail, to the notice address which the applicant has provided.

The mailing of a notice of incomplete application by the Building Inspector shall reset the 90-day shot clock, which shall start running anew, if and when the applicant tenders an additional submission to the Building Inspector to remedy the issues the Building Inspector identified in the notice of incomplete application, which the Building Inspector had mailed to the applicant.

Type IV applications new towers and all other wireless facilities 150 days.

Unless extended by agreement, tolled, or subject to reasonable delays, the Board shall issue a written decision upon a Type IV application within 150 days from the date when the Village receives a Type IV application.

Upon receipt of a Type IV application, the Building Inspector shall review the application for completeness. If the Building Inspector determines the application is: (a) incomplete, (b) missing required application materials, (c) is the wrong type of application, or (d) is otherwise defective, then, within 30 days of the Village's receipt of the application, the Building Inspector, or their designee, shall mail the applicant a notice of incompleteness by first-class mail, to the notice address provided by the applicant.

The mailing of a notice of incomplete application by the Building Inspector shall toll the 150-day shot clock, which shall not thereafter resume running unless and until the applicant tenders an additional submission to the Building Inspector to remedy the issues the Building Inspector identified in the notice of incomplete application, which the Building Inspector had mailed to the applicant.

The submission of any responsive materials by the applicant shall automatically cause the shot clock period to resume running.

Shot clock tolls, extensions and reasonable delay periods. Consistent with the letter and intent of Section 47 U.S.C. § 332(c)(7)(B)(ii) of the TCA, each of the shot clock periods set forth within § 110-3.3E hereinabove shall generally be presumed to be sufficient periods within which the Board shall render decisions upon special permit applications. Notwithstanding same, the applicable shot clock periods may be tolled, extended by mutual agreement between any applicant and/or its representative and the Board, and the Board shall not be required to render its determination within the shot clock period presumed to be reasonable for each type of application, where the processing of such application is reasonably delayed, as described hereinbelow.

Tolling of the applicable shot clock due to incompleteness and/or applicant error.

As provided for within § 110-3.3E hereinabove, in the event that the Building Inspector deems an application incomplete, the Building Inspector shall send a notice of incompleteness to the applicant to notify the applicant that its application is incomplete and/or contains material errors, and shall reasonably identify the missing information and/or documents and/or the error(s) in the application.

If the Building Inspector mails a notice of incompleteness as described hereinabove, the applicable shot clock shall automatically be tolled, meaning that the applicable shot clock period within which the Board is required to render a final decision upon the application shall immediately cease running, and shall not resume running, unless and until the Village receives a responsive submission from the applicant.

If and when the applicant thereafter submits additional information in an effort to complete its application, or cure any identified defect(s), then the shot clock shall automatically resume running, but shall not be deemed to start running anew.

The applicable shot clock period shall, once again, be tolled if the Building Inspector thereafter provides a second notice that the application is still incomplete or defective, despite any additional submissions which have been received by the Village, from the applicant, up to that point.

Shot clock extension by mutual agreement.

The Board, in its sole discretion, shall be free to extend any applicable shot clock period by mutual agreement with any respective applicant. This discretion on the part of the Board shall include the Board's authority to request, at any time, and for any period of time the Board may deem reasonable or appropriate under the circumstances, consent from a respective applicant, to extend the applicable shot clock period, to enable the Board, the applicant, or any relevant third party, to complete any type of undertaking or task related to the review, analysis, processing, and determination of the particular application, which is then pending before the Board, to the extent that any such undertaking, task, or review is consistent with, or reasonably related to, compliance with any federal, state, or local law, and/or the requirements of any provision of the Village Code, including but not limited to this section.

In response to any request by the Board, the applicant, by its principal, agent, attorney, site acquisition agent, or other authorized representative can consent to any extension of any applicable shot clock, by affirmatively indicating its consent either in writing or by affirmatively indicating its consent on the record at any public hearing or public meeting. The Board shall be permitted to reasonably rely upon a representative of the applicant indicating that they are authorized to grant such consent on behalf of the respective applicant, on whose behalf they have been addressing the Board within the hearing process.

Reasonable delay extensions of shot clock periods.

The Village recognizes that there may be situations wherein, due to circumstances beyond the control of the Village and/or the Board, the review and issuance of a final decision upon a special permit application for a personal wireless facility cannot reasonably be completed within the application shot clock periods delineated within § 110-3.3E hereinabove.

If, despite the exercise of due diligence by the Village and the Board, the determination regarding a specific application cannot reasonably be completed within the applicable shot clock period, the Board shall be permitted to continue and complete its review, and issue its determination at a date beyond the expiration of the applicable period, if the delay of such final decision is due to circumstances including, but not limited to, those enumerated hereinbelow, each of which shall serve as a reasonable basis for a reasonable delay of the applicable shot clock period.

Reasonable delays which may constitute proper grounds for extending the presumed sufficient periods for rendering determinations under the applicable shot clock periods may include, but are not necessarily limited to, those set forth within § 110-3.3P, Q, R, and S herein below.

Application requirements.

Applications for special permits under this section shall be made to the Building Inspector, who shall initially determine whether or not the application is complete and/or free of defects upon receipt of the same.

If the Building Inspector determines that the application is defective or incomplete, they shall promptly mail a notice of incompleteness to the applicant, in accord with § 110-3.3E to toll the applicable shot clock, to ensure that the Village and the Board are afforded sufficient time to review and determine each respective application.

Each application shall include the following materials, the absence of any one of which listed hereinbelow, shall render the respective application incomplete:

Special permit and site plan applications. Completed applications for a special permit and site plan that shall identify all applicants, co-applicants, site developer(s), and wireless carrier(s) on whose behalf the application is being submitted, as well as the property owner of the proposed site.

Filing fees. The appropriate filing fees then being charged by the Village for applications for special permit applications, site plan applications, and other related applications.

A "notice address." A "notice address," that being a specific address to which the Village, Planning Board and/or Building Inspector may mail any type of notice, and that the mailing of same to such address shall constitute sufficient notice to any applicant, co-applicant, and/or their attorney, to comply with any requirement under this section as well as any local, state and/or federal law.

Proof of authorization for site occupancy. Where an applicant is not the owner of the real property upon which it seeks to install its equipment or facility, they shall submit proof of authorization to occupy the site at issue. If the applicant is leasing all or a portion of real property upon which it intends to install its new facility or equipment, then the applicant shall provide a written copy of its lease with the owner of such property. The applicant may redact any financial terms contained within the lease, but it shall not redact any portion of the lease which details the amount of area leased, restrictions as to use and restoration nor the specific portion of the real property to which the applicant has obtained the right to occupy, access, or preclude others from entering. Where an applicant is seeking to co-locate new equipment into an existing facility, it shall provide a copy of its written co-location agreement with the owner of such pre- existing facility, from which it may redact any financial terms.

A drawn-to-scale depiction. The applicant shall submit drawn-to-scale depictions of its proposed wireless support structure and all associated equipment to be mounted thereon, or to be installed as part of such facility, which shall clearly and concisely depict all equipment and the measurements of same, to enable the Building Inspector to ascertain whether the proposed facility would qualify as a small wireless facility as defined under this section. If the applicant claims that its proposed installation qualifies as a small wireless facility within this section, the drawn-to-scale depiction shall include complete calculations for all of the antennas and equipment of which the facility will be comprised, depicting that, when completed, the installation and equipment will meet the physical size limitations which enable the facility to qualify as a small wireless facility.

Site plan. The applicant shall submit a site plan and site plan application in accordance with § 110-45. The site plan shall show all existing and proposed structures and improvements, including antennas, roads, buildings, guy wires and anchors, fencing or other enclosure, parking, and landscaping, and shall include grading plans for new facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan.

Engineer's report. To the extent that an application proposes the co-location of new equipment onto an existing tower or facility, the applicant shall provide an engineer's report certifying that the proposed shared use will not diminish the structural integrity and safety of the existing structure and explaining what modifications, if any, will be required in order to certify to the above.

Environmental assessment form. A completed environmental assessment form (EAF) and a completed visual EAF addendum.

Visual impact analysis. A completed visual impact analysis, which, at a minimum, shall include the following:

Small wireless facilities. For applications seeking approval for the installation of a small wireless facility, the applicant shall provide a visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a "clear line of sight" between the tower location and their location.

Telecommunications towers and personal wireless service facilities which do not meet the definition of a small wireless facility. For applications seeking approval for the installation of a telecommunications tower or a personal wireless service facility that does not meet the definition of a small wireless facility, the applicant shall provide:

A visual impact analysis which shall include photographic images taken from the perspectives of the properties situated in closest proximity to the location being proposed for the siting of the facility, as well as those properties which would reasonably be expected to sustain the most significant adverse aesthetic impacts due to such factors as their close proximity to the site, their elevation relative to the site, the existence or absence of a "clear line of sight" between the tower location and their location.

The photographic images shall depict the height at which the proposed facility shall stand when completed, including all portions and proposed attachments to the facility, including, but not limited to, the main support structure, all antennas, transmitters, whip antennas, lightning rods, t-bars, crossbars, and cantilever attachments which shall, in whole or in part, be affixed to it, any and all surrounding equipment compound(s), fencing, cellular equipment cabinets, transformers, transformer vaults and/or cabinets, sector distribution boxes, ice bridges, backup generators, including but not limited to equipment boxes, switch boxes, backup generators, ice bridges, etc., to the extent that any of such compound and/or equipment will be visible from properties other than the property upon which the proposed tower and compound are to be installed.

The visual impact analysis shall include an assessment of alternative designs and color schemes, as well as an assessment of the visual impact of the proposed facility, taking into consideration any supporting structure which is to be constructed, as well as its base, guy wires, accessory structures, buildings, and overhead utility lines from abutting properties and streets.

(j)

Alternative site analysis. A completed alternative site analysis of all potential less intrusive alternative sites which the applicant has considered, setting forth their respective locations, elevations, and suitability or unsuitability for remedying whatever specific wireless coverage needs the respective applicant or a specific wireless carrier is seeking to remedy by the installation of the new facility which is the subject of the respective application for a special permit. If, and to the extent that an applicant claims that a particular alternative site is unavailable, in that the owner of an alternative site is unwilling or unable to accommodate a wireless facility upon such potential alternative site, the applicant shall provide probative evidence of such unavailability, whether in the form of communications or such other form of evidence that reasonably establishes same. The alternative site analysis shall contain:

An inventory of all existing tall structures and existing or approved communications towers within a two-mile radius of the proposed site.

A map showing the exact location of each site inventoried, including latitude and longitude (degrees, minutes, seconds), ground elevation above sea level, the height of the structure and/or tower, and accessory buildings on the site of the inventoried location.

An outline of opportunities for shared use of an existing wireless facility as opposed to the installation of an entirely new facility.

A demonstration of good-faith efforts to secure shared use from the owner of each potential existing tall structure and existing or approved communications tower, as well as documentation of the physical, technical, and/or financial reasons why shared usage is not practical in each case.

(k)

FCC compliance report.

An FCC compliance report, prepared by a licensed engineer, and certified under penalties of perjury, that the content thereof is true and accurate, wherein the licensed engineer shall certify that the proposed facility will be FCC compliant as of the time of its installation, meaning that the facility will not expose members of the general public to radiation levels that exceed the permissible radiation limits which the FCC has set.

If it is anticipated that more than one carrier and/or user is to install transmitters into the facility that the FCC compliance report shall take into account anticipated exposure from all users on the facility and shall indicate whether or not the combined exposure levels will, or will not exceed the permissible general population exposure limits, or alternatively, the occupational exposure limits, where applicable.

Such FCC compliance report shall provide the calculation or calculations with which the engineer determined the levels of RF radiation and/or emissions to which the facility will expose members of the general public.

On the cover page of the report, the report shall explicitly specify: (a) whether the applicant and their engineer are claiming that the applicable FCC limits based upon which they are claiming FCC compliance are the general population exposure limits or the occupational exposure limits. If the applicant and/or their engineer are asserting that the occupational exposure limits apply to the proposed installation, they shall detail a factual basis as to why they claim that the higher set of limits is applicable, (b) the exact minimum distance factor, measured in feet, which the applicant's engineer used to calculate the level of radiation emissions to which the proposed facility will expose members of the general public. The minimum distance factor is the closest distance (i.e., the minimum distance) to which a member of the general public shall be able to gain access to the transmitting antennas mounted upon, or which shall be a part of, the proposed facility.

(l)

FCC license. A copy of any applicable Federal Communications Commission license possessed by any carrier named as an applicant, co-applicant, or whose equipment is proposed for installation as of the time the application is being filed with the Village.

(m)

Effective prohibition claims. The Village is aware that applicants seeking approvals for the installation of new wireless facilities often assert that federal law, and more specifically the TCA, prohibits the local government from denying their respective applications. In doing so, they assert that their desired facility is "necessary" to remedy one or more significant gaps in a carrier's personal wireless service, and they proffer computer-generated propagation maps to establish the existence of such purported gaps. The Village is additionally aware that, in August 2020, driven by a concern that propagation maps created and submitted to the FCC by wireless carriers were inaccurate, the FCC caused its staff to perform actual drive tests, wherein the FCC staff performed 24,649 tests, driving nearly 10,000 miles through nine states, with an additional 5,916 stationary tests conducted at 42 locations situated in nine states. At the conclusion of such testing, the FCC Staff determined that the accuracy of the propagation maps submitted to the FCC by the wireless carriers had ranged from as little as 16.2% accuracy to a maximum of 64.3% accuracy. As a result, the FCC staff recommended that the FCC no longer accept propagation maps from wireless carriers without supporting drive test data to establish their accuracy. A copy of the FCC staff's 66-page report is made a part of this section as Appendix 1.[2]

The Village considers it of critical import that applicants provide truthful, accurate, complete, and sufficiently reliable data to enable the Board to render determinations upon applications for new wireless facilities consistent with both the requirements of this section and the statutory requirements of the TCA. Consistent with same, if, at the time of filing an application under this section, an applicant intends to assert before the Board or the Village that: (a) an identified wireless carrier suffers from a significant gap in its personal wireless services within the Village; (b) that the applicant's proposed installation is the least intrusive means of remedying such gap in services; and/or (c) that under the circumstances pertaining to the application, a denial of the application by the Board would constitute an "effective prohibition" under Section 47 U.S.C. § 332 the TCA, then, at the time of filing such application, the applicant shall be required to file a written statement which shall be entitled: "Notice of Effective Prohibition Conditions."

If an applicant files a notice of effective prohibition conditions, then the applicant shall be required to submit probative evidence to enable the Board to reasonably determine: (a) whether or not the conditions alleged by the respective applicant exist; (b) whether there exists a significant gap or gaps in an identified wireless carrier's personal wireless services within the Village; (c) the geographic locations of any such gaps; and (d) the geographic boundaries of such gaps, to enable the Board to determine whether granting the respective application would be consistent with the requirements of this section and the legislative intent behind same, and whether or not federal law would require the Board to grant the respective application, even if it would otherwise violate the Village Code, including, but not limited to, this section. The additional materials which the applicant shall then be required to provide shall include the following:

Drive test data and maps. If, and to the extent that an applicant claims that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Village, the applicant shall conduct or cause to be conducted drive tests within the specific geographic areas within which the applicant is claiming such gap or gaps exist, for each frequency at which the carrier provides personal wireless services. The applicant shall provide the Village and the Board with the actual drive test data recorded during such drive test, in a simple format which shall include, in table format:

The date and time for the test or tests;

The location, in longitude and latitude of each point at which signal strength was recorded;

Each signal strength recorded, measured in DBM, for each frequency and such data is to be provided in a separate table for each frequency at which the respective carrier provides personal wireless services to any of its end-use customers; and

The applicant shall also submit drive test maps, depicting the actual signal strengths recorded during the actual drive test, for each frequency at which the carrier provides personal wireless services to its end-use customers.

If an applicant claims that it needs a "minimum" signal strength (measured in DBM) to remedy its gap or gaps in service, then for each frequency, the applicant shall provide three signal strength coverage maps reflecting actual signal strengths in three DBM bins, the first being at the alleged minimum signal strength, and two additional three DBM bin maps depicting signal strengths immediately below the alleged minimum signal strength claimed to be required.

By way of example, if the applicant claims that it needs a minimum signal strength of-95 DBM to remedy its alleged gap in service, then the applicant shall provide maps depicting the geographic area where the gap is alleged to exist, showing the carrier's coverage at -95 to -98 DBM, -99 to -101 DBM and -102 to -104 DBM, for each frequency at which the carrier provides personal wireless services to its end-use customers.

Denial of service and/or dropped call records. If and to the extent that an applicant claims that a specific wireless carrier suffers from a capacity deficiency, or a gap in service that renders the carrier incapable of providing adequate coverage of its personal wireless services within the Village, then the applicant shall provide dropped call records and denial of service records evidencing the number and percentage of calls within which the carrier's customers were unable to initiate, maintain and conclude the use of the carrier's personal wireless services without actual loss of service, or interruption of service.

Evidence of prevention from competing in a fair and balanced market. The application shall also provide, at the time its application is filed, whatever evidence it intends to submit to establish that a denial of its application would inhibit it from competing in providing personal wireless services to its customers, or potential customers, in a fair and balanced legal and regulatory market.

Editor's Note: Appendix 1 is on file in the Village/Town offices.

(n)

Estimate for cost of removal of facility. A written estimate for the cost of the decommissioning, removal of the facility, including all equipment that comprises any portion or part of the facility, compound, and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accordance with the decommissioning and reclamation plan required herein.

(o)

Property owner consent and liability acknowledgement. A signed written consent from each owner of the subject real property upon which the respective applicant is seeking installation of its proposed personal wireless service facility, wherein the owner or owners, both authorize the applicant to file and pursue its special permit application and acknowledge the potential landowner's responsibility, under § 110-3.3L for engineering, legal and other consulting fees incurred by the Village.

(p)

Establishment of escrow. An escrow account shall be established for each application for funding for payment of professional fees incurred by the Village and/or the Board in connection with the application.

(q)

Bond. The applicant shall be required to post a bond for removal.

(r)

Insurance. The applicant shall be required to provide a certificate of insurance naming the Village as additionally insured.

Design standards. The following design standards shall apply to all applications for the siting, construction, maintenance, use, erection, movement, reconstruction, expansion, material change, or structural alteration of a personal wireless service facility.

Small wireless facilities. Small wireless facilities (SWF) shall be sited to inflict the minimum adverse impacts upon individual residential properties, schools, and houses of worship, and specifically, to minimize, to the greatest extent reasonably feasible, adverse aesthetic impacts upon residential homes or reductions in the property values of same.

SWFs attached to pre-existing wooden and non-wooden poles shall conform to the following criteria:

Proposed antenna and related equipment shall meet:

Design standards which the Village may maintain and update as needed, provided that the Village makes its designed standards publicly available for review by any potential applicant seeking approval for the installation of an SWF within the Village;

National Electric Safety Code (NESC) standards; and

National Electrical Code (NEC) standards.

Antennas and antenna equipment, including but not limited to radios, cables, associated shrouding, disconnect boxes, meters, microwaves, and conduit, which are mounted on poles, shall be mounted as close to the pole as technically feasible. They shall not be illuminated except as required by municipal, federal, or state authority, provided this shall not preclude deployment on a new or replacement street light.

Antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the pole or be mounted as close to the pole as feasible. Conduits and cabinets shall cover all cables and wiring to the extent that it is technically feasible if allowed by the pole owner. The number of conduits shall be minimized to the extent technically feasible. To the extent technically feasible, antennas, equipment enclosures, and all ancillary equipment, boxes, and conduits shall match the approximate material and design of the surface of the pole or existing equipment on which they are attached.

SWFs attached to replacement poles and new poles shall conform to the criteria set forth herein above for SWF's attached to pre-existing wooden and non-wooden poles, but shall additionally conform to the following criteria:

The Village prefers that wireless providers and site developers install SWFs on existing or replacement poles instead of installing new poles, and accordingly, to obtain approval for the installation of a new pole, the provider shall be required to document that installation on an existing or replacement pole is not technically feasible.

To the extent technically feasible, all replacement poles and new poles and pole-mounted antennas and equipment shall substantially conform to the material and design of the pole being replaced, or in the case of a new pole, it shall conform to the nearest adjacent pole or poles.

The height of replacement poles and new poles shall conform with the height limitations applicable to the district within which the applicant seeks to install their proposed SWF unless the applicant obtains a variance to obtain relief from any such limitation(s).

Telecommunications towers and personal wireless service facilities which do not meet the definition of a small wireless facility. The design of a proposed new telecommunications tower or personal wireless service facility shall comply with the following:

The choice of design for installing a new personal wireless service facility or the substantial modification of an existing personal wireless service facility shall be chosen to minimize the potential adverse impacts that the new or expanded facility may, or is likely to, inflict upon nearby properties.

Any new telecommunications tower shall be designed to accommodate future shared use by other communications providers.

Unless specifically required by other regulations, a telecommunications tower shall have a finish (either painted or unpainted) that minimizes its degree of visual impact.

Notwithstanding the height restrictions listed elsewhere in this section, the maximum height of any new telecommunications tower shall not exceed that which shall permit operation without artificial lighting of any kind or nature, in accordance with municipal, state, and/or federal law and/or regulation subject to determination of the Planning Board.

Accessory structures.

Accessory structures shall maximize the use of building materials, colors, and textures designed to blend with the natural surroundings. The use of camouflage communications towers may be required by the Board to blend the communications tower and/or its accessory structures further into the natural surroundings. "Camouflage" is defined as the use of materials incorporated into the communications tower design that give communications towers the appearance of tree branches and bark coatings, church steeples and crosses, sign structures, lighting structures, or other similar structures.

Accessory structures shall be designed to be architecturally similar and compatible with each other and shall be no more than 12 feet high. The buildings shall be used only for housing equipment related to the particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building.

No portion of any telecommunications tower or accessory structure shall be used for a sign or other advertising purpose, including but not limited to the company name, phone numbers, banners, and streamers, except the following. A sign of no greater than two square feet indicating the name of the facility owner(s) and a 24-hour emergency telephone shall be posted adjacent to any entry gate. In addition, "no trespassing" or other warning signs may be posted on the fence. All signs shall conform to the sign requirements of the Village.

Towers must be placed to minimize visual impacts. Applicants shall place towers on the side slope of the terrain so that, as much as possible, the top of the tower does not protrude over the ridgeline, as seen from public ways.

Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible. No cutting of trees shall take place on a site connected with an application made under this section prior to the approval of the special permit.

Screening.

Deciduous or evergreen tree plantings may be required to screen portions of the telecommunications tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas.

Where a site adjoins a residential property or public property, including streets, screening suitable in type, size and quantity shall be required by the Board.

The applicant shall demonstrate to the approving board that adequate measures have been taken to screen and abate site noises such as heating and ventilating units, air conditioners, and emergency power generators. Telecommunications towers shall comply with all applicable sections of this section as it pertains to noise control and abatement.

Lighting. Telecommunications towers shall not be lighted except where FAA/FCC required lighting of the telecommunications towers is necessary. No exterior lighting shall spill from the site in an unnecessary manner.

(j)

Access. Adequate emergency and service access shall be provided and maintained. Maximum use of existing roads, public or private, shall be made. Road construction shall, at all times, minimize ground disturbance and vegetation cutting to the top of fill, the top of cuts, or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential. To the extent feasible, all network interconnections to and from the telecommunications site and all power to the site shall be installed underground. At the initial construction of the access road to the site, sufficient conduit shall be laid to accommodate the maximum possible number of telecommunications providers that might use the facility.

(k)

Parking. Parking shall be provided to assure adequate emergency and service access. The Board shall determine the number of required spaces, but in no case shall the number of parking spaces be less than two spaces or more than four spaces.

(l)

Fencing. The telecommunications tower and any accessory structures shall be adequately enclosed by a fence, the design of which shall be approved by the Board. The Board may waive this requirement if the applicant demonstrates that such measures are unnecessary to ensure the security of the facility unless necessary to screen the installation at the discretion of the Board.

Planning Board initial review. Upon the acceptance of an application that appears to be complete, the Building Inspector shall transmit the application to the Planning Board for initial review. The Board, or its designee, shall then conduct an initial review to consider whether or not to establish itself as lead agency pursuant to SEQRA and/or NEPA and whether or not a use or area variance is required for the proposed application such that a referral for such an application to the ZBA will be required to be made after the Board has declared itself to serve as lead agency and during the process of the Board considering a SEQRA determination of environmental significance. That consideration of granting any required variances by the ZBA is done concurrently with the Board's review and consideration of special permit and site plan approval. The Board shall then conduct a public hearing upon each application, and render its determinations in accord with §§ 110-33.3J and K hereinbelow, and shall ultimately determine whether or not to grant each applicant a special permit and/or site plan approval.

Hearings and public notice.

Public hearings. The Board shall conduct a public hearing upon each special permit application, consistent with the procedures in § 110-46, except the Board shall have authority to schedule such additional or more frequent public hearings as may be necessary to comply with the applicable shot clocks imposed upon the Village and the Board under the requirements of the TCA.

Required public notices.

The Board shall ensure that both the public, including condo and co-op owners, and property owners whose properties might be adversely impacted by the installation of a wireless facility receive Notice by personal or certified mail, return receipt requested at least 10 business days prior to any public hearing pertaining to same and shall ensure that they are afforded an opportunity to be heard concerning same.

Before the date scheduled for the public hearing, the Board shall cause to be published a "notice of public hearing for new wireless facility."

Each notice of public hearing for new wireless facility shall state the name or names of the respective applicant or co-applicants, and property owner if different, provide a brief description of the personal wireless facility for which the applicant seeks a special permit, and the date, time, and location of the hearing.

Each notice of public hearing for new wireless facility shall be published both: (a) once per week for two successive weeks in the official newspaper of the Village of Mount Kisco as designated in § 18-1; and (b) by mailing copies of such notice to property owners, as provided for herein below.

The face of each envelope containing the notices of the public hearing shall state, in all bold typeface, in all capital letters, in a font size no smaller than 12 point, the words: "NOTICE OF PUBLIC HEARING FOR NEW WIRELESS FACILITY".

For Type I and Type III applications, notices of public hearing shall be mailed to all property owners, and condo and co-op owners whose real properties are situated within 300 feet of any property line of the real property upon which the applicant seeks to install its new wireless facility. If the site for the proposed facility is situated on, or adjacent to, a residential street containing 12 houses or less, the Board shall additionally mail a copy of such notices to all homeowners on that street, even if their home is situated more than 300 feet from any property line of the property upon which the applicant proposes to install its facility.

For Type II and Type IV applications, the applicant shall mail such notices of public hearing to all property owners, and condo and co-op owners whose real properties are situated within 1,500 feet of any property line of the real property upon which the applicant seeks to install its new wireless facility.

The applicant shall additionally post a notice upon the proposed site advising the public of the public hearing showing the time and date of the public hearing no less than four square feet and no more than five square feet in size.

Prior to the date of the hearing, the respective applicant shall file an affidavit of mailing, attesting to whom such notices were mailed by the applicant, and the content of the notices which were mailed to such recipients.

Factual determinations to be rendered by the Planning Board.

Evidentiary standards. In determining special permit applications for personal wireless service facilities, the Board shall have sole discretion to determine what probative evidence it shall require each applicant to produce in support of its application to enable the Board to make each of the factual determinations enumerated below. By way of common examples of the types of evidence which the Board may require an applicant to produce, are the following:

Where an applicant is not the owner of the real property upon which it proposes to install a new wireless facility, the Board can require the applicant to provide a copy of the applicant's lease with the property owner (including any schedules, property descriptions, appendices or other attachments), from which the applicant may censor or delete any financial terms which would be irrelevant to the factual issues which the Board is required to determine;

Where the Board deems it appropriate, the Board can require the applicant to perform what is commonly known as a "balloon test" with a balloon no less than eight feet in diameter at the height of the proposed installation in red or orange and to require the applicant to publish reasonably sufficient advance public notice of same, to enable the Board, property owners, and condo and co-op owners, and the community, an opportunity to assess the actual adverse aesthetic impact which the proposed facility is likely to inflict upon the nearby properties and surrounding community;

Where the applicant asserts a claim that a proposed facility is necessary to remedy one or more existing significant gaps in an identified wireless carrier's personal wireless services, the Board may require the applicant to provide drive-test generated coverage maps, as opposed to computer-generated coverage maps, for each frequency at which the carrier provides personal wireless services, to show signal strengths in bins of three DBM each, to enable the Board to assess the existence of such significant gaps accurately, and/or whether the carrier possesses adequate coverage within the geographic area which is the subject of the respective application.

Where the applicant asserts that a potential less intrusive alternative location for a proposed facility is unavailable because the owner of the potential alternative site is incapable or unwilling to lease space upon such site to the applicant, the Board may require the applicant to provide proof of such unwillingness in the form of communications to and from such property owner, and/or a sworn affidavit wherein a representative of the applicant affirms, under penalty of perjury, that they attempted to negotiate a lease with the property owner, what the material terms of any such offer to the property owner were, when the offer was tendered, and how, if at all, the property owner responded to such offer. The Board shall have sole discretion to determine, among other things, the relevance of any evidence presented, the probative value of any evidence presented, the credibility of any testimony provided, whether expert or otherwise, and the adequacy of any evidence presented. The Board shall not be required to accept, at face value, any unsupported factual claims asserted by an applicant but may require the production of evidence reasonably necessary to enable the Board to determine the accuracy of any factual allegations asserted by each respective applicant. Conclusory factual assertions by an applicant shall not be accepted as evidence by the Board.

Factual determinations. To decide applications for special permits under this section, the Board shall render factual determinations, which shall include two specific types of factual determinations, as applicable. First, the Board shall render local zoning determinations according to Subsection K(2)(a) hereinbelow. Then, if, and only if, an applicant asserts claims that: (a) its proposed wireless facility or installation is necessary to remedy a significant gap in personal wireless services for an explicitly identified wireless carrier; and (b) that its proposed installation is the least intrusive means of remedying a specifically identified significant gap or gaps, the Board shall additionally render TCA determinations, in accordance with Subsection K(2)(b) hereinbelow. The Board shall separately record each factual determination it makes in a written decision and shall reference, or make note of, the evidence based upon which it rendered each of its factual determinations. Each factual determination made by the Board shall be based upon substantial evidence. For purposes of this provision, "substantial evidence" shall mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It means less than a preponderance but more than a scintilla of evidence. Evidence which the Board may consider shall include any evidence submitted in support of an application, and any evidence submitted by anyone opposing a respective application, whether such evidence is in written, oral, or photographic form, or whether it is in the form of testimony by any expert, or any person who has personal knowledge of the subject of their testimony. The Board may, of course, additionally consider as evidence any information or knowledge which they, themselves, personally possess, and any documents, records or other evidence which is a matter of public record, irrespective of whether such public record is a record of the Village, or is a record of or is maintained by, another federal, state, local, and/or other governmental entity and/or agency which maintains records which are available for, or subject to, public review. The requirements for specific factual determinations set forth below are intended to inure to the benefit of the Village, its residents, and property owners, and not applicants. If, and to the extent that the Board fails to render one or more of such determinations, that omission shall not constitute grounds upon which the respective applicant can seek to annul, reverse or modify any decision of the Board.

Local zoning determinations. The Board shall make the following factual determinations as to whether the application meets the requirements for granting a special permit under this section.

Compliance with § 110-46. Whether the proposed installation will meet each of the conditions and standards set forth within § 110-46 in the absence of which the Board is not authorized to grant a special permit.

Potential adverse aesthetic impacts. Whether the proposed installation will inflict a significant adverse aesthetic impact upon properties that are located adjacent to, or in close proximity to, the proposed site, or any other properties situated in a manner that would sustain significant adverse or aesthetic impacts by the installation of the proposed facility.

Potential adverse impacts upon real estate values. Whether the proposed installation will inflict a significant adverse impact upon the property values of properties that are located adjacent to, or in close proximity to the proposed site, or properties that are otherwise situated in a manner that would cause the proposed installation to inflict a significant adverse impact upon their value.

Potential adverse impact upon the character of the surrounding community. Whether the proposed installation will be incompatible with the use and/or character of properties located adjacent to or in close proximity to the proposed site or other properties situated in a manner that would cause the proposed installation to be incompatible with their respective use.

Potential adverse impacts upon historic properties or historic districts. Whether the proposed installation will be incompatible with and/or would have an adverse impact upon, or detract from the use and enjoyment of, and/or character of a historic property, historic site, and/or historic district, including but not limited to historic structures, properties and/or districts which are listed on, or are eligible for listing on, the National Register of Historic Places.

Potential adverse impacts upon ridgelines or other aesthetic resources of the Village. Whether the proposed installation will be incompatible with and/or would have an adverse aesthetic impact upon or detract from the use and enjoyment of, and/or character of, recognized aesthetic assets of the Village including, but not limited to, scenic areas and/or scenic ridgelines, scenic areas, public parks, and/or any other traditionally recognized valuable scenic assets of the Village.

Sufficient fall zones. Whether the proposed installation shall have a sufficient fall zone and/or safe zone around the facility to afford the general public safety against the potential dangers of structural failure, icefall, debris fall, and fire.

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Mitigation. Whether the applicant has mitigated the potential adverse impacts of the proposed facility to the greatest extent reasonably feasible. To determine mitigation efforts on the part of the applicant, the mere fact that a less intrusive site, location, or design would cause an applicant to incur additional expense is not a reasonable justification for an application to have failed to propose a reasonable alternative site or reasonable mitigation measures.

If when applying the evidentiary standards set forth in Subsection K(2)(a) hereinabove, the Board determines that the proposed facility would not meet the standards set forth within § 110-46, or that the proposed facility would inflict one or more of the adverse impacts described hereinabove to such a substantial extent that granting the respective application would inflict upon the Village and/or its citizens/residents and/or property owners the types of adverse impacts which this provision was enacted to prevent, the Board shall deny the respective application for a special permit unless the Board additionally finds that a denial of the application would constitute an effective prohibition, as provided for in Subsection K(2)(b) and (c) immediately hereinbelow.

TCA determinations. In cases within which an applicant has filed a "notice of effective prohibition conditions," the Board shall make three additional factual determinations, as listed hereinbelow:

Adequate personal wireless services coverage. Whether the specific wireless carrier has adequate personal wireless services coverage within the geographic areas for which the applicant claims a significant gap exists in such coverage.

Significant gap in personal wireless services of an identified carrier.

Whether the applicant has established, based upon probative evidence provided by the applicant and/or its representative, that a specific wireless carrier suffers from a significant gap in its personal wireless services within the Village.

In rendering such determination, the Board shall consider factors including, but not necessarily limited to: (a) whether the identified wireless carrier which is alleged to suffer from any significant gap in their personal wireless services has adequate service in its personal wireless services at any frequency being used by the carrier to provide personal wireless services to its end-use customers; (b) whether any such alleged gap is relatively large or small in geographic size; (c) whether the number of the carrier's customers affected by the gap is relatively small or large; (d) whether or not the location of the gap is situated on a lightly traveled road, or sparsely or densely occupied area; and/or (e) overall, whether the gap is relatively insignificant or otherwise relatively de minimis, and can be remedied by the erection of an alternate facility in an adjoining municipality.

A significant gap cannot be established simply because the carrier's customers are currently using the carrier's personal wireless services, but the frequency at which the customers are using such services is not the frequency most desired by the earner.

Least intrusive means of remedying gap(s) in service.

Whether the applicant has established based upon probative evidence provided by the applicant and/or its representative, that the installation of the proposed facility, at the specific site proposed by the applicant, and the specific portion of the site proposed by the applicant, and at the specific height proposed by the applicant is the least intrusive means of remedying whatever significant gap or gaps which the applicant has contemporaneously proved to exist as determined by the Board based upon any evidence in support of, and/or in opposition to, the subject application.

In rendering such determination, the Board shall consider factors including, but not necessarily limited to: (a) whether the proposed site is the least intrusive location at which a facility to remedy an identified significant gap may be located, and the applicant has reasonably established a lack of potential alternative less intrusive sites and lack of sites available for co-location; (b) whether the specific location on the proposed portion of the selected site is the least intrusive portion of the site for the proposed installation; (c) whether the height proposed for the facility is the minimum height actually necessary to remedy an established significant gap in service; (d) whether or not a pre-existing structure can be used to camouflage the facility and/or its antennas; (e) whether or not, as proposed, the installation mitigates adverse impacts to the greatest extent reasonably feasible, through the employ of stealth design, screening, use of color, noise mitigation measures, etc.; and/or (f) overall whether or not there is a feasible alternative to remedy the gap through alternative, less intrusive substitute installations, such as the installation of multiple shorter installations, instead of a single microcell facility.

Finding of effective prohibition or lack of effective prohibition.

If, when applying the evidentiary standards set forth in Subsection K(2)(a) hereinabove, the Board affirmatively determines that the applicant has failed to establish either: (i) that an identified wireless carrier suffers from a significant gap(s) in its personal wireless services within the Village; and/or (ii) that the applicant has failed to establish that the proposed installation in or within the Village is the least intrusive means of remedying any such gap or gaps, then the Board may deny the application pursuant to Subsection K(2)(b) hereinabove, and such denial shall not constitute an "effective prohibition."

If when applying the evidentiary standards set forth in Subsection K(2)(a) hereinabove, the Board affirmatively determines that the applicant has established both: (i) that an identified wireless carrier suffers from a significant gap in personal wireless services within the Village; and (ii) that the proposed installation is the least intrusive means of remedying such significant gap or gaps, then the Board shall grant the application, irrespective of any determinations the Board may make pursuant to Subsection K(2)(b) hereinabove, because any such denial would constitute an "effective prohibition."

Retention of consultants.

Use of consultants. Where deemed reasonably necessary by the Board and/or the Village, the Board and/or the Village may retain the services of professional consultants to assist the Board in carrying out its duties in deciding special permit applications for personal wireless service facilities. Where the Board uses the services of private engineers, attorneys, or other consultants for purposes of engineering, scientific, land use planning, environmental, legal, or similar professional reviews of the adequacy or substantive aspects of applications, or of issues raised during the course of review of applications for special permit approvals of personal wireless service facilities, the applicant and landowner, if different, shall be jointly and severally responsible for payment of all the reasonable and necessary costs incurred by the Village for such services. In no event shall that responsibility be greater than the actual cost to the Village of such engineering, legal, or other consulting services.

Advance deposits for consultant costs. The Village and/or Board may require advance periodic monetary deposits held by the Village on account of the applicant or landowner to secure the reimbursement of the Village's consultant expenses. The Board shall establish policies and procedures for the fixing of escrow deposits and the management of payment from them. After audit and approval of itemized vouchers by the Village Treasurer as to reasonableness and necessity of the consultant charges, the Village may make payments from the deposited funds for engineering, legal or consultant services. Upon receiving a request by the applicant or landowner, the Village shall supply copies of such vouchers to the applicant and/or landowner reasonably in advance of audit and approval, appropriately redacted where necessary to shield legally privileged communications between Village officers or employees and the Village's consultant. When it appears that there may be insufficient funds in the account established for the applicant or landowner by the Village to pay current or anticipated vouchers, the Village shall cause the applicant or landowner to deposit additional sums to meet such expenses or anticipated expenses in accordance with policies and procedures established by the Board. Consultants shall undertake no review on any matter scheduled before the Board until the initial escrow deposit has been made or requested replenishment of the escrow deposit has been made. No reviewing agency shall be obligated to proceed unless the applicant complies with escrow deposit requirements.

Reasonable limit upon consultant expenses.

A consultant expense or part thereof is reasonable in amount if it bears a reasonable relationship to the customary fee charged by engineers, attorneys, or planners within the region for services performed on behalf of applicants or reviewing boards in connection with comparable applications for land use or development.

The Village may also take into account any special conditions for considerations as it may deem relevant, including but not limited to the quality and timeliness of submissions on behalf of the applicant and the cooperation of the applicant and agents during the review process, including but not limited to, efforts by adjoining municipalities to provide service to avoid any gap in coverage.

A consultant expense or part thereof is necessarily incurred if it was charged by the engineer, attorney or planner, or other consultants, for a service which was rendered to assist the Board in: (a) making factual determinations consistent with the goals of protecting or promoting of the health, safety or welfare of the Village or its residents; (b) assessing potential adverse environmental impacts such as those identified within a SEQRA process; (c) accessing potential adverse impacts to historic properties, structures and/or districts; and/or (d) assessing and determining factual issues relevant to effective prohibition claims, as addressed herein, to enable the Board to best comply with the letter and intent of the provision of the TCA which is relevant thereto.

Audits upon the request of an applicant. Upon request of the applicant or landowner, the Board shall review and audit all vouchers and determine whether such engineering, legal and consulting expenses are reasonable in amount and necessarily incurred by the Village in connection with the review and consideration of a special permit application for personal wireless service facility. In the event of such a request, the applicant or landowner shall be entitled to be heard by the Board on reasonable advance notice. The determination of the Board shall be deemed final.

Liability for consultant expenses. For a land-use application to be complete, the applicant shall provide the written consent of all owners of the subject real property, both authorizing the applicant to file and pursue land development proposals and acknowledging potential landowner responsibility, under this section, for engineering, legal, and other consulting fees incurred by the Village. If different from the applicant, the owner(s) of the subject real property shall be jointly and severally responsible for reimbursing the Village for funds expended to compensate services rendered to the Village under this section by private engineers, attorneys, or other consultants. The applicant and the owner shall remain responsible for reimbursing the Village for its consulting expenses, notwithstanding that the escrow account may be insufficient to cover such expenses. No special permit, building permit or other permit shall be issued until reimbursement of costs and expenses determined by the Village to be due. In the event of failure to reimburse the Village for such fees, the following shall apply:

The Village may seek recovery of unreimbursed engineering, legal, and consulting fees by court action in an appropriate jurisdiction, and the defendant(s) shall be responsible for the reasonable and necessary attorney's fees expended by the Village in prosecuting such action.

Alternatively, and at the sole discretion of the Village, a default in reimbursement of such engineering, legal and consulting fees expended by the Village shall be remedied by charging such sums against the real property that is the subject of the special permit application, by adding that charge to and making it a part of the next annual real property tax assessment roll of the Village. Such charges shall be levied and collected simultaneously and in the same manner as Village-assessed taxes and applied in reimbursing the fund from which the costs were defrayed for the engineering, legal and consulting fees. Prior to charging such assessments, the owners of the real property shall be provided written notice to their last known address of record, by certified mail, return receipt requested, of an opportunity to be heard and object before the Board to the proposed real property assessment, at a date to be designated in the notice, which shall be no less than 30 days after its mailing, and no permits shall be issued until payment of all sums due hereby.

Setback requirements.

Small wireless facilities. Within all districts delineated in § 110-2 all small wireless facilities shall be set back a minimum of 300 feet from any residential dwelling or structure, unless the facility is being installed upon a pre-existing utility pole or is being co-located upon a pre-existing personal wireless service facility.

Cell towers and all personal wireless service facilities that do not meet the definition of a small wireless facility.

Each proposed wireless personal service facility and personal wireless service facility structure, compound, and complex shall be located on a single lot and comply with applicable setback requirements. Adequate measures shall be taken to contain on-site all icefall or debris from tower failure and preserve the privacy of any adjoining residential properties.

Each lot containing a wireless personal service facility and personal wireless service facility structure, compound, and complex shall have the minimum area, shape, and frontage requirements generally prevailing for the zoning district where located, in the schedules of regulations for nonresidential and residential districts of this section, and such additional land if necessary to meet the setback requirements of this section.

Cell towers and personal wireless service facilities that do not meet the definition of a small wireless facility, shall maintain a minimum setback of a distance equal to 110% of the height of the facility, for front yard setbacks, rear yard setbacks and side yard setbacks, in all zoning districts.

Height restrictions.

Small wireless facilities. Personal wireless service facilities which meet the definition of a small wireless facility shall not exceed a maximum height of 45 feet aboveground elevation in all districts delineated in § 110-2.

Non-small wireless facilities. Personal wireless service facilities which do not meet the definition of a small wireless facility shall not exceed a maximum height of 100 feet aboveground elevation in all districts delineated in § 110-2.

Use restrictions and variances; use restrictions by application type and zoning district.

Type I applications; no use variance required. Type I applications for co-location of a small wireless facility in all districts delineated in § 110-2 outside of the PWSFDO shall be a special permit use, requiring an applicant to obtain a special permit from the Board. Type I applications for co-location of a small wireless facility within the PWSFDO shall be governed by § 110-27.1.

Type II applications; no use variance required unless determined otherwise.

Applications for colocations of a wireless personal services facility, which do not meet the definition of a small wireless facility, shall be considered a special permit in all districts and shall require a special permit and a building permit, but shall not require a use variance, unless the Board, in its sole discretion, determines that the proposed colocation will increase the overall intrusiveness of the site to a sufficient extent that its presence would no longer be compatible with the surrounding properties and/or surrounding community, in which case the Board shall issue a decision determining that the applicant shall be required to obtain a variance from the ZBA in accord with § 110-42, et seq. of the Village Code.

In rendering a determination of whether or not a variance shall be required, the Board shall consider, among other things: (a) the physical size, number, and potential instrusiveness of each new item of equipment to be installed as part of the proposed colocation; (b) the extent to which the installation of such equipment is to require or effectuate a significant physical expansion of the size or area of the facility or complex, (c) the extent to which the addition of such additional equipment will likely increase the adverse aesthetic impact of the facility, and/or any other potentially significant adverse impacts which are likely to cause a significant increase in the overall intrusiveness of the wireless facility, and/or its compound or complex, such that it will no longer be reasonably compatible with the use of nearby or surrounding properties and/or that its presence would be incompatible with the character and use of the nearby properties and/or surrounding community.

If the Board determines that a variance is required for a specific proposed facility, then the applicant shall be required to file an application for a variance. The ZBA shall thereafter have the authority to: (a) determine that no variance is necessary; (b) grant the application for a variance; or (c) deny the application for a variance. Type II applications within the PWSFDO shall be governed by § 110-27.1.

Type III applications; no use variance required. Applications for installing new small wireless facilities that meet the criteria for Type III applications shall be considered a special permit use in all districts outside of the PWSFDO. They shall require a special permit and building permit but shall not require a variance, unless they do not meet the applicable setback requirements or height limitation. Type III applications within the PWSFDO shall be governed by § 110-27.1.

Type IV applications variance requirements. Type IV applications seeking approval for the installation of a new cell tower and/or all other wireless facilities that are not a small wireless facility in all districts outside of the PWSFDO shall be a prohibited use which shall require a use variance, special permit, building permit, and area variance if the proposed installation does not meet the applicable height limitation and/or setback requirements. Type IV applications within the PWSFDO shall be governed by § 110-27.1.

Environmental impacts.

If, and to the extent that, the Board determines a proposed installation bears the potential for a significant adverse impact upon the environment within the meaning of SEQRA and/or the NEPA, then the Board shall be expected to comply with the requirements of SEQRA in determining both: (a) the extent of adverse impacts upon the environment and/or historic properties; and (b) what mitigation measures the applicant should be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or districts.

If a respective applicant fails to obtain a review from the NYSDEC and/or NEPA and opinion letters from the NYSDEC and the FCC pertaining to its proposed installation prior to a first public hearing before the Board for the respective application, then the Board may make direct requests to the NYSDEC and the FCC for their review of the application. The Board may request SHPO and the FCC's review and input in completing the statutorily-required environmental impact analysis pursuant to SEQRA and NEPA.

In addition, the Board shall comply with the statutory requirements of SEQRA to complete a SEQRA review, make determinations of significance, and where appropriate, require the applicant to complete a draft environmental impact statement, and if additionally appropriate, to thereafter complete a final environmental impact statement and analysis.

So long as the Board acts with reasonable diligence in completing its SEQRA and NEPA review, if compliance with the statutory requirements for environmental review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable.

Historic site impacts.

The Board shall consider the potential adverse impacts of any proposed facility upon any historic site, district, or structure consistent with the requirements of the Village's historic preservation law and comprehensive plan and SEQRA.

If, and to the extent that, the Board determines that a proposed installation bears the potential for a significant adverse impact upon a historic site or a historic district within the meaning of SEQRA and/or the NHPA (especially if the historic site at issue is listed upon the national register of historic places), then the Board shall comply with the requirements of both SEQRA and Village law in determining both: (a) the extent of adverse impacts upon the historic properties; and (b) what mitigation measure might the applicant be required to undertake to minimize the adverse environmental impacts and/or adverse impacts upon historic sites, structures and/or district.

Should a respective applicant fail to obtain a SHPO and/or a Section 106 review under NHPA, and opinion letters from SHPO and the FCC pertaining to its proposed installation prior to a first public hearing before the Board for the respective application, then the Board shall make direct requests to SHPO and the FCC for their review of the application. They shall request SHPO and the FCC's review and input in completing the statutorily-required environmental/historic impact analysis pursuant to SEQRA and NHPA.

This request shall include, but not be limited to, a request to the FCC for a Section 106 review, as defined in this section, as the Village recognizes each application for a special permit for the installation of a personal wireless services facility shall constitute "an undertaking" for purposes of compliance with the National Historic Preservation Act.[3]

Editor's Note: See 54 U.S.C.A. § 100101 et seq.

So long as the Board acts with reasonable diligence in completing its SEQRA and NHPA review, if compliance with the statutory requirements for historic preservation review requires a period of effort that extends beyond the expiration of the applicable shot clock period, the delays beyond such period shall be deemed reasonable.

Force majeure. In the event that the rendering of a final decision upon a special permit application under this section is delayed due to natural and/or unnatural events and/or forces which are not within the control of the Village or the Board, such as the unavoidable delays experienced in government processes due to the COVID 19 pandemic, and/or mandatory compliance with any related federal or state government orders issued in relation thereto, such delays shall constitute reasonable delays which shall be recognized as acceptable grounds for extending the period for review and the rendering of final determinations beyond the period allotted under the applicable shot clock.

Eleventh hour submissions.

In the event that an applicant tenders eleventh-hour submissions to the Village and/or the Board in the form of: (a) expert reports; (b) expert materials; and/or (c) materials which require a significant period for review due either to their complexity or the sheer volume of materials which an applicant has chosen to provide to the Board at such late point in the proceedings, the Board shall be afforded a reasonable time to review such late-submitted materials.

If reasonably necessary, the Board shall be permitted to retain the services of an expert consultant to review any late-submitted expert reports which were provided to the Board, even if such review or services extend beyond the applicable shot clock period, so long as the Board completes such review and retains and secures such expert services within a reasonable period of time thereafter, and otherwise acts with reasonable diligence in completing its review and rendering its final decision.

Prohibition against illegally excessive emissions and RF radiation testing.

As disclosed upon the FCC's public internet website, personal wireless services facilities erected at any height under 200 feet are not required to be registered with the FCC.

Of even greater potential concern to the Village is the fact that the FCC does not enforce the RF radiation limits codified within the CFR by either: (a) testing the actual radiation emissions of wireless facilities either at the time of their installation or at any time thereafter; or (b) requiring their owners to test them. See relevant excerpts from the FCC's public internet website annexed as Appendix 2.[4]

Editor's Note: Appendix 2 is on file in the Village/Town offices.

This means that when wireless facilities are constructed and operated within the Village, the FCC will have no idea where they are located and no means of determining, much less ensuring, that they are not exposing residents within the Village and/or the general public to illegally excessive levels of RF radiation.

The Village deems it to be of critical importance to the health, safety, and welfare of the Village, its residents, and the public at large that personal wireless service facilities do not expose members of the general public to levels of RF radiation that exceed the limits which have been deemed safe by the FCC, and/or are imposed under CFR.

In accord with the same, the Village enacts the following RF radiation testing requirements and provisions set forth herein below.

No wireless telecommunications facility shall at any time be permitted to emit illegally excessive RF radiation as defined in § 110-3.3C or to produce power densities that exceed the legally permissible limits for electric and magnetic field strength and power density for transmitters, as codified within 47 CFR 1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR 1.1310(e)(3).

To ensure continuing compliance with such limits by all owners and/or operators of personal wireless service facilities within the Village, all owners, and operators of personal wireless service facilities shall submit reports as required by this section.

As set forth hereinbelow, the Village may additionally require, at the owner and/or operator's expense, independent verification of the results of any analysis set forth within any reports submitted to the Village by an owner and/or operator.

If an operator of a personal wireless service facility fails to supply the required reports or fails to correct a violation of the legally permissible limits described hereinabove, following notification that their respective facility is believed to be exceeding such limits, any special permit or other zoning approval granted by the Board or any other Board or representative of the Village is subject to modification or revocation by the Board following a public hearing.

Initial certification of compliance with applicable RF radiation limits.

Within 45 days of initial operation or a substantial modification of a personal wireless service facility, the owner and/or operator of each telecommunications antenna shall submit to the Building Inspector a written certification by a licensed professional engineer, sworn to under penalties of perjury, that the facility's radio frequency emissions comply with the limits codified within 47 CFR 1.1310(e)(1), Table 1 Sections (i) and (ii), as made applicable pursuant to 47 CFR 1.1310(e)(3).

The engineer shall measure the emissions of the approved facility, including the cumulative impact from other nearby facilities, and determine if such emissions are within the limits described hereinabove.

A report of these measurements and the engineer's findings with respect to compliance with the FCC's maximum permissible exposure (MPE) limits shall be submitted to the Building Inspector.

If the report shows that the facility does not comply with applicable limits, then the owner and/or operator shall cease operation of the facility until the facility is brought into compliance with such limits. Proof of compliance shall be a certification provided by the engineer who prepared the original report. The Village may require, at the applicant's expense, independent verification of the results of the analysis.

Random RF radiofrequency testing.

At the operator's expense, the Village may retain an engineer to conduct random unannounced RF radiation testing of such facilities to ensure the facility's compliance with the limits codified within 47 CFR 1.1310(e)(1) et seq.

The Village may cause such random testing to be conducted as often as the Village may deem appropriate. However, the Village may not require the owner and/or operator to pay for more than one test per facility per calendar year unless such testing reveals that one or more of the owner and/or operator's facilities are exceeding the limits codified within 47 CFR 1.1310(e)(1) et seq., in which case the Village shall be permitted to demand that the facility be brought into compliance with such limits, and to conduct additional tests at the owner/operator's expense to determine if, and when, the owner and/or operator thereafter brings the respective facility and/or facilities into compliance.

If the Village at any time finds that there is good cause to believe that a personal wireless service facility and/or one or more of its antennas are emitting RF radiation at levels in excess of the legal limits permitted under 47 CFR 1.1310(e)(1) et seq., then a hearing shall be scheduled before the Board at which the owner and/or operator of such facility shall be required to show cause why any and all permits and/or approvals issued by the Village for such facility and/or facilities should not be revoked, and a fine should not be assessed against such owner and/or operator.

Such hearing shall be duly noticed to both the public and the owner and/or operator of the respective facility or facilities at issue. The owner and/or operator shall be afforded not less than two weeks written notice by first-class mail to its notice address.

At such hearing, the burden shall be on the Village to show that, by a preponderance of the evidence, the facilities emissions exceeded the permissible limits under 47 CFR 1.1310(e)(1) et seq.

In the event that the Village establishes same, the owner and/or operator shall then be required to establish, by clear and convincing evidence, that a malfunction of equipment caused their failure to comply with the applicable limits through no fault on the part of the owner/operator.

If the owner and/or operator fails to establish same, the Board shall have the power to, and shall revoke any special permit, variance, building permit, and/or any other form of zoning- related approval(s) which the Board, Building Inspector, ZBA and/or any other representative of the Village may have then issued to the owner and/or operator, for the respective facility.

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In addition, the Board shall impose a fine of not less than $1,000, nor more than $5,000 for such violation of Subsection T(9)(a) hereinabove, or, in the case of a second offense within less than five years, a minimum fine of $5,000, nor more than $25,000.

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In the event that an owner or operator of one or more personal wireless service facilities is found to violate Subsection T(9)(a) hereinabove, three or more times within any five-year period, then in addition to revoking any zoning approvals for the facilities which were violating the limits codified in 47 CFR 1.1310(e)(1) et seq., the Board shall render a determination within which it shall deem the owner/operator prohibited from filing any applications for any new wireless personal services facilities within the Village for a period of five years.

Bond requirements; removal of abandoned facilities and reclamation.

Bond requirement.

At, or prior to the filing of an application for a special permit for the installation of a new personal wireless service facility, each respective applicant shall provide a written estimate for the cost of the decommissioning and removal of the facility, including all equipment that comprises any portion or part of the facility, compound and/or complex, as well as any accessory facility or structure, including the cost of the full restoration and reclamation of the site, to the extent practicable, to its condition before development in accordance with the decommissioning and reclamation plan required herein. The Building Inspector shall review this estimate.

Upon receiving a special permit approval from the Board, and a building permit, prior to the commencement of installation and/or construction of such facility or any part thereof, the applicant shall file with the Village a bond for a length of no less than three years in an amount equal to or exceeding the estimate of the cost of removal of the facility and all associated structures, fencing, power supply, and other appurtenances connected with the facility. The bond must be provided within 30 days of the approval date and before any installation or construction begins.

Replacement bonds must be provided 90 days prior to the expiration of any previous bond.

At any time the Village has good cause to question the sufficiency of the bond at the end of any three-year period, the owner and/or operator of the facility, upon request by the Village, shall provide an updated estimate and bond in the appropriate amount.

Failure to keep the bonds in effect is cause for removal of the facility at the owner's expense. A separate bond will be required for each facility, regardless of the number of owners or the location.

Removal of abandoned facilities.

Any personal wireless service facility that is not operated or used for a continuous period of 12 consecutive months shall be considered abandoned. At the owner's expense, the owner of said facility shall be required to remove the facility and all associated equipment, buildings, power supply, fence, and other items associated with such facility, compound and/or complex, and permitted with, the facility.

If the facility is not removed within 90 days, the bond secured by the facility owner shall be used to remove the facility and any accessory equipment and structures.

ADA accommodations. (Reserved)

General provisions.

Balancing of interests.

The Village formally recognizes that, as has been interpreted by federal courts within the Second Circuit, when it enacted the TCA, Congress chose to preserve local zoning authority over decisions regarding the placement, construction, and modification of personal wireless facilities (47 U.S.C. § 332(c)(7)(A)) subject only to the limitations set forth in 47 U.S.C. § 332(c)(7)(b), consistent with the holding of the United States Court of Appeals in Sprint Spectrum L.P. v. Willoth, 176 F3d 630 (2nd Cir.1999) and its progeny, and the Village has relied upon such federal courts' interpretations of the TCA in enacting § 110-33.3 et seq.

The Village similarly embraces the federal courts' determinations that the TCA was created to effectuate a balancing between the interests of facilitating the growth of wireless telephone service nationally and maintaining local control over the siting of wireless personal services facilities, as the Court additionally articulated in Omnipoint Communications Inc. v. The City of White Plains, 430 F3d. 529 (2nd Cir. 2005). This includes preserving-to local governments, including the Village/Town of Mount Kisco, the power to deny applications for the installation of wireless personal services facilities, based upon traditional grounds of zoning denials, including, but not limited to, the potential adverse aesthetic impacts or a reduction in property values which the construction of any proposed structure may inflict upon nearby properties or the surrounding community.

This additionally includes the recognition that, under this balancing of interest test, "once an area is sufficiently serviced by a wireless service provider, the right to deny applications (for new wireless facilities) becomes broader" Crown Castle NG East LLC v. The Village of Hempstead, 2018 WL 6605857.

It is the intent of the Village that this section be applied in a manner consistent with the balancing of interests codified within the TCA.

Consistent with same, the Village rejects and shall reject any current and/or future FCC interpretations of any provision of the TCA which are clearly inconsistent with, and/or are clearly contrary to, both the language of the TCA and binding decisions of the United States Court of Appeals for the Second Circuit and United States District Courts within the Second Circuit.

This includes a rejection of any FCC interpretations inconsistent with Willoth and any claims that the FCA legally prohibits the Board from denying a permit application, based solely upon a claim that an applicant desires the installation of its new facility for "densification" of its existing personal wireless services, or to offer a new service, irrespective of whether or not the carrier already possesses adequate coverage within the Village, and irrespective of the potential adverse impact which the installation of such new facility or facilities would inflict upon the Village, its property owners, citizens and/or communities.