[Added 4-10-2000 by L.L. No. 2-2000]
[Amended 3-24-2011 by L.L. No. 2-2011]
A.Â
The Village of Port Washington North Board of Trustees finds herewith
that wireless communications facilities specified herein comprise
a rapidly growing segment of the telecommunication sector. The Village
of Port Washington North Board of Trustees hereby determines that
it is in the best interest of the residents of the Village to set
forth specific regulations establishing standards for the safe provision
of the wireless communication facilities specified herein, consistent
with applicable federal and state laws, statutes rules and regulations.
B.Â
The Village of Port Washington North Board of Trustees fully recognizes
and adopts Section 704 of the Telecommunications Act signed into law
February 8, 1996, such section defining personal wireless services
and personal wireless service facilities and preserving local zoning
authority over decisions regarding the placement, construction, and
modification of wireless communication service facilities except for
five limitations, including that:
(1)Â
A local government shall not unreasonably discriminate among
providers of functionally equivalent services; and
(2)Â
A local government shall not prohibit or have the effect of
prohibiting the provision of personal wireless services; and
(3)Â
A local government shall not prohibit or have any request for
authorization to place, construct or modify personal wireless services
facilities within a reasonable period of time after the request is
filed; and
(4)Â
A local government shall put any decision to deny a PWSF into
writing and support such decision by substantial evidence contained
in a written record; and
(5)Â
A local government shall not regulate personal wireless service
facilities on the basis of the environmental effects of radio frequency
emission to the extent that such facilities comply with the Federal
Communications Commission Guidelines for Evaluating the Environmental
Effects of Radiofrequency Radiation (FCC Guidelines).
C.Â
The Village of Port Washington North Board of Trustees hereby determines
that the following set-forth standards are in the best interests of
the residents of the Village of Port Washington North and fully comply
with the Federal Telecommunications act of 1996.
(1)Â
Protect the health, safety and welfare of the residents of the
Village.
(2)Â
Protect natural features, aesthetics and residential character
of the neighborhoods within the Village and the efficient and orderly
development of land uses from potential adverse impacts.
(3)Â
Promote and encourage the location of these devices in nonresidential
areas of the Village.
(4)Â
Minimize the total number of such devices constructed throughout
the Village within functional limits.
(5)Â
Promote and encourage joint use of such new and existing devices
and discourage the erection of such devices for single users.
(6)Â
Promote and encourage location of such devices, to the extent
possible, in areas where adverse impacts on the surrounding neighborhoods
is minimized.
(7)Â
Promote and encourage configuration of such devices in a manner
that minimizes adverse visual impacts through careful design, siting,
landscaping, screening and innovative camouflaging techniques.
(8)Â
Promote the ability to providers of services related to such
devices to supply such services as effectively though adequate engineering
and siting requirements.
(9)Â
Prohibit potential damage to adjacent and/or nearby properties
from collapse or failure of such devices through adequate engineering
and siting requirements.
(10)Â
Regulate all wireless communication facilities fairly and non-discriminataorityamong
and between the various companies engaged in constructing and/or operating
wireless communication facilities within the boundaries of the Village
of Port Washington North.
[Amended 3-24-2011 by L.L. No. 2-2011]
Unless otherwise stated in the section where the term is used
herein, the meanings of terms used in this chapter shall be as stated
below:
Includes any building or other structure which is accessory
to the principal use, being subordinate in size, area, extent and
purpose to the principal use, and located on the same lot as the principal
use.
The use of any communication, transmission and/or reception
antennas and/or towers, radio television and/or telecommunications
beacons to carry two or more antennas by two or more service providers.
To enclose a personal wireless service facility within a
natural or man-made feature resulting in the facility being either
invisible or made part of the feature enhancing it.
The appearance of a personal wireless service facility such
as its materials, colors and shape.
Includes wireless communication facilities, tower, monopole,
antenna, beacon, and accessory facility as defined herein.
To design a personal wireless service facility to appear
to be something other than a personal wireless service facility.
The area on the ground within a prescribed radius from the
base of a personal wireless service facility. The fall zone is the
area within which there might be a potential hazard from falling debris
in collapsing material.
The distance measured from the finished mean grade of the
parcel to the highest point on the tower or other structure, including
the base pad and any antenna.
The reduction or limitation of visual impacts by the use
of one or more methods:
Includes any structure designed and constructed primarily
for the purpose of supporting one or more antennas for telephone,
television, radio and similar communication purposes, including self-supporting
lattice towers, guyed towers or monopole towers, radio and television
transmissions and reception towers, microwave towers, common-carrier
towers, cellular telephone towers, alternate tower structures and
similar structures, inclusive of the structure and any support systems
appurtenant thereto.
Includes transmission and/or reception antennas and/or towers,
monopoles, boxes, radio, television, and/or telecommunications beacons,
and radio or television stations, including accessory facilities and
structures and any device not otherwise defined herein the purpose
of which is to facilitate the wireless transmission of voice, data,
images or other forms of wireless communications.
A.Â
No antenna or tower shall hereafter be used, erected,
changed or altered except after obtaining a special exception permit
in conformity with this article.
B.Â
The Board is hereby authorized to review and approve,
approve with modifications or disapprove special exception permits
pursuant to this article. The Board shall have the authority to impose
such reasonable conditions and restrictions as are directly related
to and incidental to the proposed antenna, tower, or accessory structures
and the protection of the health, safety, and welfare of the Village,
including, but not limited to, the aesthetics thereof.
C.Â
The Village of Port Washington North Board of Trustees shall give
due consideration to the existing land uses and development of the
Village, including but not limited to environmentally sensitive areas
and other appropriate factors in approving the issuance of a special
exception permit for the siting (changed sitting to siting) of communication,
transmission and/or reception antennas and/or towers, radio, television
and/or telecommunications beacons and personal wireless service facilities.
[Added 3-24-2011 by L.L. No. 2-2011]
(1)Â
Zoning. Such uses shall only be permitted within commercial
and industrial zoning districts of the Village of Port Washington
North, unless special and unique circumstances demonstrate by clear
and convincing proof that a communications system cannot properly
function without the location of such a use in a specific residential
area. The applicant has the burden of proof.
(2)Â
Inventory. Any application for such uses shall include an inventory
of all existing like uses, or sites approved for like uses, that are
either within the jurisdiction of the Village of Port Washington North
or within two miles of the border thereof, including specific information
about the location, height and design of each wireless communication
facility, compiled by the applicant from municipal records. The applicant
shall be required to prove that existing wireless communication facilities
are not adequate to remedy any gaps in the applicant coverage.
D.Â
No application for a special exception permit for a personal wireless
services facility shall be accepted by the Building Department or
any other representative of the Village of Port Washington North if:
[Added 3-24-2011 by L.L. No. 2-2011]
(1)Â
The applicant owns any other use, structure or facility in the
Village of Port Washington North that has been shown by the Village
to be in arrears from any property tax bill.
(2)Â
The owner of the property or the owner of the structure to which
the personal wireless service facilities is proposed for attachment
has been shown by the Village to be in arrears from any property tax
bill.
(3)Â
The applicant owns any other use, structure or facility in the
Village of Port Washington North that has not received proper zoning
and/or building permits in accordance with the Village Code of Port
Washington North.
(4)Â
The owner of the property or the owner of the structure to which
the personal wireless service facility is proposed for attachment
has not received proper zoning permits or building permits in accordance
with the Village Code of Port Washington North.
(5)Â
No such application shall be accepted by the Village until outstanding
building violations are satisfied.
E.Â
All applications for special exception permits under this section
shall include the following all of which shall be certified or sworn
to as accurate by qualified persons.
[Added 3-24-2011 by L.L. No. 2-2011]
(1)Â
Certification by a qualified professional setting forth that
such use meets or exceeds current standard regulations of the FAA,
FCC and any other state or federal agency having proper authority.
(2)Â
A scaled site plan which meets all the site requirements of
the Code of the Village of Port Washington North and any applicable
regulations.
(3)Â
Delineation of all setback distances between the proposed use
and all adjoining structures and properties.
(4)Â
Delineation of all distances from other like uses described
in the inventory of existing sites submitted with the application
shall be shown on a site plan or map, identifying the type of construction
of the existing uses and the owner/operator of any such existing uses,
if same can be determined, compiled from municipal records by the
applicant.
(5)Â
A notarized statement by the applicant as to whether construction
of the proposed use will accommodate collocation of additional antennas
for future users.
(6)Â
A written description of the application's compliance with all
applicable requirements of this section and all applicable federal,
state and local laws.
(7)Â
A description of the suitability or unsuitability of existing
like users, other structures and/or alternative technology that are
available in place of the proposed structure and the uses contemplated
for the proposed structure.
(8)Â
All information required for a special exception permit in this
chapter.
(9)Â
Applicants are required to submit with their application documented
reports, affidavits and studies that establish the need for the proposed
facility in the location desired.
(10)Â
Applicants are required to submit with their application documented
reports, affidavits and studies to establish that the proposed facilities
will comply with the federally established limit for RF emissions.
(11)Â
The applicant is required to provide availability of suitable
existing uses or other structures or alternative technologies not
requiring the use of the new structures; the Village Board of Trustees
should receive and review evidence from the applicant proving that
existing facilities are not adequate to remedy the applicant's claimed
gap in coverage.
(12)Â
The applicant is required to provide sufficient evidence that
there is no suitable location for the proposed facility, including
providing an inventory of the applicant's efforts to obtain suitable
location on such property and the results of all testing to measure
the suitability of the subject site and alternative sites.
(13)Â
Proposed (after condition) photo simulation. Each of the existing
condition photographs shall have the proposed personal wireless services
facility superimposed on it to show what will be seen from any residential
buildings if the proposed personal wireless servicelt. All photosimulations
shall be positioned to show maximum exposure of any proposed roadway,
such roadway to be represented in its proposed, graded appearance.
(14)Â
All existing vegetation, by mass or individually by diameter
of each stand-alone tree or shrub. Tree masses or individual stand-alone
trees shall be identified by species.
(15)Â
All proposed changes to the existing property, including grading,
vegetation removal and temporary and permanent roads and driveways.
(16)Â
Existing trees and shrubs at current height and proposed trees
and shrubs at proposed height at the time of installation, with approximate
elevations and dimensions.
(17)Â
Equipment brochures for the proposed personal wireless service
facility such as manufacturer's specifications. These shall be provided
for the antennas, mounts, equipment shelters, cables as well as cable
runs, and security barrier, if any.
(18)Â
Materials of the proposed personal wireless service facility
specified by generic type and specific treatment (e.g., anodized aluminum,
stained wood, painted fiberglass, etc.). These shall be provided for
the antennas, mounts, equipment shelters, cables as well as cable
runs, and security barrier, if any.
(19)Â
Colors of the proposed personal wireless represented by a color
board showing actual colors proposed. Colors shall be provided for
the antennas, mounts, equipment shelters, cables as well as cable
runs, and security barrier, if any.
(20)Â
Landscape plan including existing trees and shrubs and those
proposed to be added, identified by size of specimen at installation
and species.
(21)Â
The applicant shall provide the area to be served by the proposed
personal wireless service facility and relationship to other existing
and proposed personal wireless service facilities within a five-mile
radius of the proposed application.
All towers erected, constructed, or located
within the Village shall comply with the following requirements:
A.Â
A proposal for a tower shall not be approved unless
the Board finds that the antenna planned for the proposed tower cannot
be accommodated on an existing or approved tower or building within
a one-mile search radius of the proposed tower due to one or more
of the following reasons:
(1)Â
The antenna would exceed the structural capacity
of the existing or approved tower or building, as documented by a
qualified professional engineer, and the existing or approved tower
cannot be reinforced, modified, or replaced to accommodate the planned
or equivalent antenna at a reasonable cost.
(2)Â
The antenna would cause interference materially
impacting the usability of other existing or planned antenna at the
tower or building as documented by a qualified professional engineer
and the interference cannot be prevented at a reasonable cost.
(3)Â
Existing or approved towers and buildings within
the search radius cannot accommodate the antenna at a height necessary
to function reasonably as documented by a qualified professional engineer.
(4)Â
Other foreseen reasons that make it unfeasible
to locate the antenna upon an existing or approved tower or building.
B.Â
Any proposed tower shall be designed, structurally,
electrically, and in all respects, to accommodate both the applicant's
antennas and comparable antennas for at least five additional users.
Towers must be designed to allow for future rearrangement of antennas
upon the tower and to accept antennas mounted at varying heights.
C.Â
The applicant shall submit to the Board a letter of
intent committing the applicant, and its successors in interest, to
negotiate in good faith for shared use of the proposed tower by other
PWS providers in the future. The issuance of a permit (assuming the
tower is approved according to this article), shall commit the new
tower owner and its successors in interest to:
(1)Â
Respond in a timely comprehensive manner to
a request for information from a potential shared-use applicant.
(2)Â
Negotiate in good faith concerning future requests
for shared use of the new tower by other PWS providers.
(3)Â
Allow shared use of the new tower if another
PWS provider agrees in writing to pay charges.
(4)Â
Make no more than a reasonable charge for shared
use, based on generally accepted accounting principles. The charge
may include, but is not limited to, a pro rata share of the cost of
site selection, planning, project administration, land costs, site
design, Village fees, construction and maintenance financing, return
on equity, and depreciation, and all of the costs of adapting the
tower or equipment to accommodate a shared user without causing electromagnetic
interference.
D.Â
In order to keep neighboring municipalities informed,
and to facilitate the possibility of directing that an existing tall
structure or existing tower in a neighboring municipality be considered
for shared use, an applicant shall submit to the Board an affidavit
that it has sent by registered or certified mail, return receipt requested,
at least fifteen days prior to the public hearing a notification to
all of the village clerks of each village, the fire departments and
the water authorities within two miles of the proposed location of
the tower. Such notification shall include the exact location of the
proposed tower, and a general description of the project including,
but not limited to the height of the tower and its capacity for future
shared use.
A.Â
Proof of noninterference from antenna. Each application
for installation of an antenna shall include either a preliminary
or a certified statement that the installation of the antenna, including
reception and transmission functions, will not interfere with the
radio or television service enjoyed by adjacent residential and nonresidential
properties or with public safety telecommunications. In the event
only a preliminary statement is submitted with the application, a
final certified statement of noninterference shall be provided, subject
to the approval of the Village, prior to the issuance of a permit.
The statement shall be prepared and certified by a professional engineer.
B.Â
Antenna safety. Antennas shall be subject to state
and federal regulations pertaining to nonionizing radiation and other
health hazards related to such facilities. The owner shall submit
evidence of compliance with the Federal Communication Commission's
standards on a yearly basis. If new, more restrictive, standards are
adopted, the antennas shall be made to comply or continued operations
may be restricted by the Board. The cost of verification of compliance
shall be borne by the owner and operator of the tower.
C.Â
Tower lighting. Towers shall not be illuminated by
artificial means and shall not display strobe lights unless such lighting
is specifically required by the Federal Aviation Administration or
other federal or state authority for a particular tower. When incorporated
into the approved design of the tower, and approved by the Board,
light fixtures used to illuminate ball fields, parking lots, or similar
areas may be attached to the tower.
E.Â
Tower height limitation. The maximum height limitation
of any personal wireless service facility including any antennas,
mounts and equipment shall be the minimum height of that zoning district
but in no case greater than 50 feet above the ground upon which the
antennas is placed.
[Amended 3-24-2011 by L.L. No. 2-2011]
F.Â
Tower building requirements.
(1)Â
The use of guyed towers is prohibited. Towers
must be self-supporting without the use of wires, cables, beams, or
other means. The design should utilize an open framework or monopole
configuration. Permanent platforms or structures exclusive of antennas
that serve to increase off-site visibility are prohibited.
(2)Â
The base of the tower shall occupy no more than
500 square feet and no portion of the tower shall be larger than the
base.
(3)Â
Minimum spacing between tower locations shall
be 1/4 mile.
G.Â
Access to towers. A road and parking shall be provided
to assure adequate emergency and service access. Maximum uses of existing
roads, public or private, shall be made.
H.Â
Setbacks for towers and accessory structures.
(1)Â
The tower and accessory structures shall comply
with all minimum setbacks of the zoning district.
(2)Â
Personal wireless service facilities shall be
set back from any adjoining lot line a distance equal to at least
150% of the height of the facility in order to provide a safe fall
zone: this requirement may be varied only if the Board finds that
the granting of a variance from this requirement will not create an
unsafe condition.
[Amended 3-24-2011 by L.L. No. 2-2011]
I.Â
Screening and security of towers and accessory structures.
(1)Â
Existing on-site vegetation shall be preserved
to the maximum extent practicable.
(2)Â
Towers and accessory structures shall be provided with security fencing to prevent unauthorized entry. Such fencing shall be no less than six feet and no greater than eight feet in height and shall be constructed of either masonry, wrought iron or wire (not wood) and shall meet the requirements for fences set forth in § 176-140 of this chapter.
(3)Â
All such uses shall be landscaped with a buffer or plant materials sufficient to screen the view of such uses from adjacent properties, consisting of at least one row of mixed evergreen shrubs and trees capable of forming a hedge at least eight feet in height. All buffers shall be in compliance with § 176-79 of the Port Washington North Village Code, and maintenance shall be the responsibility of the owner of the property pursuant to § 176-80 of the Village of Port Washington North Village Code.
[Amended 3-24-2011 by L.L. No. 2-2011]
J.Â
Design of antennas, towers, and accessory structures.
Towers and antennas shall be designed to blend into the surrounding
environment through the use of color and camouflaging architectural
treatment, except in instances where the color is dictated by federal
or state authorities such as the Federal Aviation Administration.
Every antenna and tower shall be of neutral colors that are harmonious
with, and that blend with, the natural features, buildings and structures
surrounding such antenna and structure, provided however, that directional
or panel antenna and omni-directional or whip antennas located on
the exterior of a building that will also serve as an antenna tower
shall be of colors that match, and cause the antenna to blend with,
the exterior of the building. Accessory structures will be designed
to be architecturally compatible with principal structures on the
site and the aesthetics of the neighboring structures.
The operator of every PWS antenna shall submit
to the Village Clerk copies of all licenses and permits required by
other agencies and governments with jurisdiction over the design,
construction, location and operation of such antenna and shall maintain
such licenses and permits and provide evidence of renewal or extension
thereof when granted. Upon the failure to do so after 30 days' notice,
in the discretion of the Board, unless good cause for such failure
is shown, shall result in the termination of the special exception
permit.
No permit granted under this article for any
antenna or tower, or accessory structure, shall be assigned or transferred
without the prior approval of the Board.
All permits granted under this article shall
be subject to review by the Board at ten-year intervals, to determine
whether the technology in the provision of PWS has changed such that
the necessity for the permit at the time of its approval has been
eliminated or modified, and whether the permit should be modified
or terminated as a result of any such change.
[Amended 3-24-2011 by L.L. No. 2-2011]
In addition to the fees set forth in other provisions
of the Village Code:
A.Â
Applicants shall be required to pay an application
fee of $2,500 for each location on which a personal wireless service
facility is proposed to be located and shall also be responsible for
payment of expenses as provided in the Village Code.
B.Â
Each owner and operator of a tower shall pay to the
Village an annual fee of $2,500 for each tower and $2,500 for each
antenna on such tower.
C.Â
Each owner and operator of an antenna or other structure for a personal
wireless service facility not on a tower shall pay to the Village
an annual fee of $2,500 for such facility.
A.Â
Upon the termination of the permit granted pursuant
to this article, or upon the abandonment or discontinuance of use
of any towers or portions of towers or associated facilities, whichever
is the first to occur, such towers or portions of towers or associated
facilities shall be removed as follows:
(1)Â
All towers and associated facilities for which the permit granted pursuant to this article has been terminated, and all abandoned or unused towers and associated facilities shall be removed within six months of such termination, abandonment or discontinuance of use, unless a time extension is approved by the Board. A copy of the relevant portions of a signed lease which requires the applicant to remove the tower and associated facilities upon such termination, abandonment or discontinuance of use at the site shall be submitted at the time of application. In the event that a tower is not removed within six months of the such termination, abandonment or discontinuance of use, the tower and associated facilities may be removed by the Village and the costs of removal assessed against the property, in the manner set forth in Chapter 128, Property Maintenance, of the Village of Port Washington North, § 128-14, Village's right to maintain private property and assess the cost of such maintenance against the property owner.
(2)Â
Unused portions of towers above a manufactured connection shall be removed within six months of the time of antenna relocation unless a time extension is approved by the Board. The replacement of portions of a tower previously removed requires the issuance of a new special exception permit. In the event that said unused portion of the tower is not removed within said six months, said portion of the tower may be removed by the Village and the costs of removal assessed against the property, in the manner set forth in said Chapter 128, Property Maintenance, § 128-14.
B.Â
Performance bond.
(1)Â
No permit shall be issued pursuant to this article
until the applicant has delivered a performance bond to the Village,
in a form satisfactory to the Village Attorney, in a sum equal to
the cost of removing the tower and associated facilities, to secure
the applicant's responsibility:
(a)Â
to remove the tower and associated facilities
within six months of the termination of the permit granted pursuant
to this article or the abandonment or discontinuance of use of such
tower and associated facilities, unless a time extension is approved
by the Board; and
(b)Â
to remove the unused portions of towers above
a manufactured connection within six months of the time of antenna
relocation, unless a time extension is approved by the Board.
(2)Â
All such bonds shall be issued by insurance
companies licensed to do business in the State of New York with Best
ratings of A or better.
(3)Â
Accompanying such bonds shall be an estimate
of the cost of the removal of the tower and associated facilities,
certified by a professional engineer.
(4)Â
All such bonds shall be renewed not less than
once every three years, and shall be accompanied by an updated professional
engineer's certification of the cost of removal.
Antennas and towers in existence which do not
conform to or comply with this article are subject to the following
provisions:
A.Â
Antennas and towers may continue in use for the purpose
now used and as now existing but may not be replaced or structurally
altered without complying in all respects with this article.
B.Â
If such antennas or towers are hereafter damaged or
destroyed due to any reason or cause whatsoever, the antenna or tower
may be repaired and restored to its former use, location, and physical
dimensions without complying with this article; provided, however,
that if the cost of repairing the tower to the former use, physical
dimensions, and location would be 20% or more of the cost of a new
tower of like kind and quality, then the tower may not be repaired
or restored except in full compliance with this article.
[1]
Editor's Note: Former § 176-206, Procedural requirements,
was repealed 3-24-2011 by L.L. No. 2-2011.
[1]
Editor's Note: Former § 176-207, Variances, was repealed
3-24-2011 by L.L. No. 2-2011.
[Added 3-24-2011 by L.L. No. 2-2011]
A.Â
No application for such a special exception permit shall be granted
unless the applicant demonstrates to the reasonable satisfaction of
the Village Board of Trustees that no existing use, structure or alternative
technology not requiring construction can accommodate the applicant's
proposed use.
B.Â
An applicant shall submit any information requested by the Village
Board of Trustees relating thereto. Such evidence may consist of any
or all of the following:
(1)Â
That no suitable existing uses or structures are located within
the geographic areas which meet the applicant's engineering requirements.
(2)Â
That alternative technologies not requiring the use of towers
or structures, such as a cable micro cell network using multiple low-powered
transmitters/receivers attached to a wire line system is unusable.
Costs of alternative technology that exceed new tower or antenna development
shall not be presumed to render the technology unsuitable.
(3)Â
Each application for a personal wireless service facility shall
also contain two alternatives that differ from the personal wireless
service facility proposed in the application. The alternatives need
not be totally different from the proposed one; however, the alternatives
should contain differences, such as height, location, zoning district
and design.
[Added 3-24-2011 by L.L. No. 2-2011]
If any clause, sentence, paragraph, subdivision, section or
other part of this article shall for any reason be adjudged by any
court of competent jurisdiction to be unconstitutional or otherwise
invalidated, such judgment shall not affect, impair or invalidate
the remainder of this article, and it shall be construed to have been
the legislative intent to enact this article without such unconstitutional,
or invalid parts therein.
[Added 3-24-2011 by L.L. No. 2-2011]
This article shall take effect immediately upon filing in the
Office of the Secretary of State.
