For purposes of this chapter and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meaning given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
ACCESSORY FACILITY or STRUCTURE
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for
a wireless facilities permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a wireless facilities permit for wireless
telecommunications facilities.
BOARD
The Village Board of Trustees of the Incorporated Village
of Plandome.
CO-LOCATION
The use of an existing tower or structure already containing
a wireless telecommunications facility to support antennas for the
provision of wireless services. A replacement tower that is constructed
on the same site as an existing tower will be considered a co-location
as long as the new tower is no taller than the old tower and that
the old tower is removed in a reasonable short time frame after the
new tower is constructed.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce; the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercial impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
COMPLETED APPLICATION
An application that contains all necessary and required information
and/or data necessary to enable an informed decision to be made with
respect to an application. Where any information is provided pursuant
to the terms of this chapter and the Village's expert or consultant
or the Board determines, based upon information provided, that further
or clarifying information is needed as to one or more aspects, then
the application will not be deemed complete until that further or
clarifying information is provided to the satisfaction of the Village's
expert or consultant or the Board.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightening
protection device.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernable
components, vehicular access, parking and/or an upgrade or changeout
of equipment for better or more modern equipment. Adding a new wireless
carrier or service provider to a telecommunications tower or telecommunications
site as a co-location is a modification. A modification shall not
include the replacement of any components of a wireless facility where
the replacement is identical to the component being replaced or for
any matters that involve the normal repair and maintenance of a wireless
facility without adding, removing or changing anything.
MUNICIPAL FACILITIES
Village-owned street lamps, streetlight poles, lighting fixtures,
electroliers, flagpoles, and other similar Village-owned structures.
MUNICIPAL PROPERTY
Village-owned buildings, and the space in, upon, above, along,
across, and over real property that is under the sole ownership, jurisdiction,
possession and control of the Village (except property leased or licensed
to or by the Village); any property where the Village holds an easement
or other beneficial interest; public right-of-way; and underwater
lands.
PERSON
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
REPAIRS AND MAINTENANCE
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matters that involve the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernable components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted.
STATE
The State of New York.
STEALTH or STEALTH TECHNOLOGY
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TEMPORARY
Temporary in relation to all aspects and components of this
chapter, something intended to, or that does not exist for more than
90 days.
TOWER
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
VILLAGE
The Incorporated Village of Plandome.
WIRELESS FACILITIES PERMIT
The official document or permit by which an applicant is
allowed to file for a building permit to construct and/or use wireless
telecommunications facilities as granted or issued by the Village.
It includes what was previously terms a special use permit for wireless
facilities.
WIRELESS TELECOMMUNICATIONS FACILITIES
Any facilities for the provision of "personal wireless services"
as that term is uses in 47 U.S.C. § 332, cellular service,
personal communication service, and/or data radio telecommunications.
It includes a structure, facility or location designed, or intended
to be used as, or used to support antennas or other transmitting or
receiving devices for such services and telecommunications. This includes
without limit, towers and structures of all types and kinds, including,
but not limited to buildings, church steeples, silos, water towers,
signs, utility poles, street lights, poles, or other structures that
can be used as a support structure for antennas or the functional
equivalent of such. It further includes all related facilities and
equipment such as cabling, equipment shelters and other structures
associated with the site. It does not include facilities exempted
from this Code by federal law or state law.
When deliberating over granting or denying a wireless facilities
permit and the location of wireless telecommunications facilities,
due consideration shall be given to generally appropriate land use
factors, as well as:
A. Existing land uses and development;
B. The character of the area;
C. Visual impacts and other aesthetics;
D. Impacts on property values;
E. The existence or absence of a genuine gap in wireless coverage in
light of the applicable legal standards as specified by federal courts
reviewing permitting decisions;
F. Actual need for the facility in light of the applicable legal standards
specified by federal courts reviewing permitting decisions availability;
G. Feasibility of less impactful alternatives;
H. That the facility is the least visually intrusive among those sites
available in the Village;
I. Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers;
J. Promoting and encouraging, wherever possible, the placement, height
and quantity of wireless telecommunications facilities in such a manner,
including but not limited to the use of stealth technology, to minimize
adverse aesthetic and visual impacts on the land, property, buildings,
and other facilities adjacent to, surrounding, and in generally the
same area as the requested location of such wireless telecommunications
facilities, which shall mean using the least visually and physically
intrusive facility that is not technologically or commercially impracticable
under the facts and circumstances.
The following shall be exempt from this chapter:
A. The Village's fire, police, department of transportation or
other public service facilities owned and operated by the local government.
B. Any facilities expressly exempt from the Village's siting, building
and permitting authority.
C. Over-the-air reception devices, including the reception antennas
for direct broadcast satellites (DBS), multichannel multipoint distribution
(wireless cable) providers (MMDS), television broadcast stations (TVBS)
and other customer-end antennas that receive and transmit fixed wireless
signals that are primarily used for reception.
D. Facilities exclusively for private, noncommercial radio and television
reception and private citizen's bands, licensed amateur radio
and other similar noncommercial telecommunications.
E. Facilities used exclusively for providing unlicensed spread spectrum
technology, i.e., Bluetooth™ or a "hot spot," where the facility
does not require a new tower, where the service is not to be used
for commercial purposes, where there is no fee or charge for the use
of the service and where the service is intended to be useable for
less than 200 feet.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
A. All antennas, towers and other supporting structures, including guy
anchor points and wires, shall be made inaccessible to individuals
and constructed or shielded in such a manner that they cannot be climbed
or collided with; and
B. Transmitters and telecommunications control points shall be installed
in such a manner that they are readily accessible only to persons
authorized to operate or service them.
Unless waived by the Village Board in its discretion, wireless
telecommunications facilities shall contain a sign no larger than
four square feet in order to provide adequate notification to persons
in the immediate area of the presence of RF radiation or to control
exposure to RF radiation within a given area. A sign of the same size
is also to be installed to contain the name(s) of the owner(s) and
operator(s) of the antenna(s) as well as emergency phone number(s).
The sign shall be on the equipment shelter or cabinet of the applicant
and be visible from the access point of the site and must identify
the equipment owner of the shelter or cabinet. On tower sites, an
FCC registration site as applicable is also to be present. The signs
shall not be lighted, unless applicable law, rule or regulation requires
lighting. No other signage, including but not limited to advertising,
shall be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by the greater of the following
distances: A distance equal to the height of the proposed tower or
wireless telecommunications facility structure plus 10% of the height
of the tower or structure, or the existing setback requirement of
the underlying zoning district, whichever is greater. Any accessory
structure(s) shall be located so as to comply with the applicable
minimum setback requirements for the property on which it is situated.
The extent and parameters of a wireless facilities permit for
wireless telecommunications facilities shall be as follows:
A. Such wireless facilities permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Village.
B. Such wireless facilities permit may, following a hearing upon due
prior notice to the applicant, be revoked, canceled, or terminated
for a violation of the conditions and provisions of the wireless facilities
permit, or for a material violation of this chapter after prior written
notice to the holder of the wireless facilities permit.
At the time that a person submits an application for a wireless
facilities permit for a new tower, facility or antenna, or for modifying
or co-locating on an existing tower or other suitable structure, where
no increase in height of the tower or structure is required, or for
a temporary facility, there shall be submitted with said application
a nonrefundable application fee per application and/or per location,
in an amount to be determined by the Village Board of Trustees and
set forth in the Village's Fee Schedule.
The applicant and the owner of record of any proposed wireless
telecommunications facilities property site shall, at its cost and
expense, be jointly required to execute and file with the Village
a bond, or other form of security acceptable to the Village as to
type of security and the form and manner of execution, in an amount
of at least $75,000 for a tower facility and $25,000 for a co-location
on an existing tower or other structure and with such sureties as
are deemed sufficient by the Village to assure the faithful performance
of the terms and conditions of this chapter and conditions of any
wireless facilities permit issued pursuant to this chapter. The full
amount of the bond or security shall remain in full force and effect
throughout the term of the wireless facilities permit and/or until
any necessary site restoration is completed to restore the site to
a condition comparable to that, which existed prior to the issuance
of the original wireless facilities permit.
In order to verify that the holder of a wireless facilities
permit for wireless telecommunications facilities and any and all
lessees, renters, and/or licensees of wireless telecommunications
facilities, place and construct such facilities, including towers
and antennas, in accordance with all applicable technical, safety,
fire, building, and zoning codes, laws, ordinances and regulations
and other applicable requirements, the Village may inspect all facets
of said permit holder's, renter's, lessee's or licensee's
placement, construction, modification and maintenance of such facilities,
including, but not limited to, towers, antennas and buildings or other
structures constructed or located on the permitted site.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the wireless facilities permit, then the Village shall notify the holder of the wireless facilities permit, in writing, of such violation. A holder of a wireless facilities permit in violation may be considered in default and subject to fines as in §
152-25 and if a violation is not corrected to the satisfaction of the Village in a reasonable period of time the wireless facilities permit is subject to revocation.
Any applicant desiring relief, waiver or exemption from any
aspect or requirement of this chapter may request such, provided that
the relief or exemption is contained in the submitted application
for either a wireless facilities permit, or in the case of an existing
or previously granted wireless facilities permit a request for modification
of its tower and/or facilities. Such relief may be temporary or permanent,
partial or complete. However, the burden of proving the need for the
requested relief, waiver or exemption is solely on the applicant to
prove. The applicant shall bear all costs of the Village in considering
the request and the relief, waiver or exemption. No such relief or
exemption shall be approved unless the applicant demonstrates by clear
and convincing evidence that, if granted the relief, waiver or exemption
will have no significant affect on the health, safety and welfare
of the Village, its residents and other service providers.
If technology develops so as to significantly reduce the size
of any existing wireless telecommunications facilities that were previously
approved by the Village and/or to improve the aesthetics of existing
approved structures, the Village must be notified, in writing, of
same.
Where this chapter differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the Village, state or federal government, this chapter shall apply.
This chapter shall be effective upon the filing with the Department
of State.
This chapter is enacted pursuant to applicable authority granted
by the state and federal government.