[HISTORY: Adopted by the Board of Trustees
of the Village of Lake Success 5-10-2021 by L.L. No. 7-2021[1]. Amendments noted where applicable.]
[1]
Editor's Note: This local law also repealed former Ch. 85,
Siting of Wireless Telecommunications Facilities, adopted 9-11-2006
by L.L. No. 9-2006.
A.Â
The Telecommunications Act of 1996 affirmed the Village of Lake Success' authority concerning the placement, construction, and modification of wireless telecommunications facilities. The Village Board of the Village of Lake Success finds that wireless telecommunications facilities may pose a unique hazard to the health, safety, public welfare, and environment of the Village of Lake Success and its inhabitants. The Village Board also recognizes that facilitating the development of wireless service technology can be an economic development asset to the Village and of significant benefit to the Village and its residents. In order to ensure that the placement, construction, or modification of wireless telecommunications facilities is consistent with the Village's land use policies, the Village Board is revising its single, comprehensive wireless telecommunications facilities application and permit process. The intent of this section is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental and aesthetic impacts of such facilities, acknowledge changes in technologies and commercial carrier needs, and protect the health, safety, and welfare of the Village of Lake Success. Moreover, in November 2009 the Federal Communications Commission (FCC) adopted Declaratory Ruling (WT Docket No. 08-165), which sets forth time frames in which a local authority must act on a wireless facility siting application ("shot clock"), and in 2012 Congress enacted the Middle Class Tax Relief and Job Creation Act ("TRA"), which under Section 6409 imposes additional limitations on state and local laws and regulations pertaining to the siting and modification of wireless telecommunications facilities and defines eligible facilities requests (EFR) to modify an existing wireless tower or base station within certain time frames. The FCC's October 21, 2014, Wireless Infrastructure Report and Order defines substantial and nonsubstantial modifications to existing cell sites and provides information on small cells and DAS and work in the public rights-of way, and the September 26, 2018, Declaratory Ruling and Third Report and Order (FCC 18-133) further addresses the deployment of infrastructure, including small cells necessary for network densification, 5G, and other advanced wireless services. This Order also discusses local, environmental, and historic reviews of wireless facilities, including small cells, and offers criteria for aesthetics and fees that local municipalities can charge. In recognition of changes in wireless technology and evolving federal and state legislation and regulations, the Village has adopted amendments to Chapter 85 to better assist in the processing and review of proposed new wireless telecommunications facility applications and in the management of existing facilities within the Village's borders.
B.Â
The purpose of this section is also to provide specific procedures
to better assist in the processing and review of applications for
proposed modifications and changes to existing wireless telecommunications
facilities, inclusive of small cells, and to process and assess proposals
for new small cell technology within the Village and the public ROWs
in the Village. This section shall not apply to wireless telecommunications
services facilities installed wholly within a principal or accessory
building, such as but not limited to indoor distributed antenna systems,
direct-to-home satellite services or direct broadcast service (DBS),
signal repeaters, baby monitors, heart monitors, garage door openers
and burglar alarm transmitters, and serving only that building.
(1)Â
Implementing application processes for person(s) seeking a special
use permit and/or a building permit for placement and construction
and maintenance of wireless telecommunications facilities;
(2)Â
Establishing a policy for examining an application for and issuing
the necessary permits for wireless telecommunications facilities that
is both fair and consistent to all licensed wireless telecommunications
providers and in accordance with applicable time frames and fees;
(3)Â
Promoting and encouraging the sharing and/or co-location of wireless
telecommunications facilities among service providers;
(4)Â
Promoting and encouraging the placement, height and quantity of wireless
telecommunications facilities in such a manner, including but not
limited to the use of stealth and other innovative design, 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;
(5)Â
Promoting and encouraging the implementation of alternatives where
reasonable to meet the aforementioned legislative intent to minimize
the adverse visual and physical effects of wireless telecommunications
facilities and to protect the natural features, aesthetics, and the
unique residential character of the Village. Recognizing the needs
for network densification and service in high-use areas along state
highways and roads, the Lakeville Road and Horace Harding Boulevard
corridors, LIE service roads; Northern Parkway and Marcus Avenue shopping
districts, transit hubs and corridors; and commercial/industrial areas;
(6)Â
Promoting and encouraging the priority of siting of wireless telecommunications
facilities to minimize the adverse visual and physical effects of
wireless telecommunications facilities and to protect the natural
features, aesthetics, and unique residential character of the Village.
Aesthetic impacts and sight lines should be shown and considered from
the perspective of nearby residences as well as street views. Aesthetic
impact evaluation includes consideration of adverse visual impacts
on the character of the area, the area's existing features and
land use and how it appears, and the existence of similar structures
in the area;
(7)Â
To minimize the impact of such facilities on residential properties;
(8)Â
To encourage the siting of wireless telecommunications services facilities
on properties and areas which are not used for residential purposes;
(9)Â
To avoid potential damage to property caused by towers and telecommunications
facilities by ensuring such structures are soundly and carefully designed,
constructed, modified, maintained, and removed when no longer used
or they are determined to be structurally unsound;
(10)Â
To ensure that towers and telecommunications facilities are compatible
with surrounding land uses;
(11)Â
The Village has determined that effective means of consistently and
fairly evaluating proposed wireless transmission facility sites while
at the same time evaluating the cumulative effects of site applications
are:
(a)Â
To create an Antenna Advisory Board whose sole responsibilities
shall be to monitor developments in wireless telecommunications, monitor
the cumulative effects of wireless transmission facilities upon the
landscape and character of the Village, and to advise the Village
Board concerning individual wireless site applications, including
the aesthetic aspects of proposed facilities, the identification of
potential alternate sites that may be considered, and other items;
(b)Â
To vest the Village Board with the authority to rule upon special
use permit applications for wireless transmission facilities, as well
as related matters;
(c)Â
To require applicants for such special use permits to provide
the Village Board with sufficient data and information to allow it
to render an informed decision upon applications; and
(d)Â
To promote and encourage comprehensive consideration and understanding
of the potential impacts associated with each wireless transmission
facility application, including potential mitigation measures that
could be implemented to minimize adverse effects on the community.
Proposed mitigation would include the use of stealth design and/or
landscaping and other approaches such as co-location.
(12)Â
The Antenna Advisory Board will consist of five members. Its individual members shall be appointed or removed by the Village Board. It shall serve in an advisory capacity only. If requested by the Village Board, the Antenna Advisory Board may perform an advisory review of aesthetic aspects of proposed sites, comment on possible alternates that may be considered, or assist with other permit application review items. The alternate sites may include the following: county-owned property; state-owned property; existing structures (such as water tanks, electrical transmission towers); Village-owned property; property owned by utilities; existing wireless telecommunications facilities; or other alternatives. Antenna Advisory Board feedback regarding alternate sites may be incorporated into the applicant's alternate site analysis (refer to § 85-6).
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 meanings given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
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.
Any telecommunications facility which has not been operational
for a period of six consecutive months.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities and located
on the same property or lots as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets or emergency back-up power generators.
Outward appearance: the way something looks, especially when
considered in terms of style, color, texture, finish, and material;
including but not limited to towers, poles or other support structures,
antennas, antenna mounts and cabling, equipment shelters, ancillary
support equipment such as meters and radio shrouds, generators or
battery backup, fencing, and landscaping. Aesthetic standards and
samples of wireless facility aesthetic designs that are preferred
in the Village of Lake Success will be kept on file with the Village
Building Department in electronic format.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
Such shall include, but not be limited to, radio, television, cellular,
LTE, 4G, 5G, paging, personal telecommunications services (PCS), microwave
telecommunications and services not licensed by the FCC, but not expressly
exempt from the Village's siting, building and permitting authority.
A set or group of antennas associated with a single wireless
telecommunications facility (e.g., a group of panel antennas located
at the same height on a tower structure for use by a particular carrier
of telecommunications wireless services).
Any person submitting an application to the Village of Lake
Success for a special use permit and/or building permit for wireless
telecommunications facilities.
All the necessary and appropriate documentation that an applicant
is required to submit for consideration of a special use permit and/or
a building permit for wireless telecommunications facilities as specifically
set forth in this chapter.
The Board of Trustees of the Incorporated Village of Lake
Success.
A wireless telecommunications facility in which antennas
and other equipment is disguised or shielded from views by use of
colors and textures that blend with the environment, or is placed
within or behind an enclosure, cover, or screening wall or otherwise
hidden by surrounding vegetation, such that it is essentially screened
from public views and adequately disguised as part of a building or
other structure Aesthetic standards and samples of preferred wireless
facility aesthetic designs, including camouflaging, will be kept on
file with the Village Building Department. Camouflaging also pertains
to the stealth tree monopole configuration, in terms of pole color/texture;
branch style, taper, and density.
The use of a wireless telecommunications facility that accommodates
two or more wireless facilities, or the use of a non-telecommunications
facility structure that supports one or more facilities for wireless
services by two or more carriers.
An application that contains all the information and/or data
required by this chapter necessary to enable an informed decision
to be made with respect to an application.
Only programming transmitted or broadcast by satellite directly
to subscribers' premises without the use of ground-receiving
equipment, except at the subscribers' premises or in the uplink
process to the satellite.
A wireless technology consisting of a network of antenna
nodes, typically affixed to existing utility poles or other low-elevation
structures and installed lower to the ground than conventional panel
antennas on telecommunications towers and supporting equipment to
provide wireless services within a specific geographic area. DAS has
sometimes been used to provide wireless services for more than one
provider. A single DAS installation (e.g., one antenna and supporting
equipment on a given utility pole or other structure) is referred
to as a DAS node.
Any person licensed by the State of New York to practice
engineering services.
The environmental assessment form approved by the New York
State Department of Environmental Conservation.
Computers, batteries, generators, transmission equipment,
cabinets, etc., which are utilized to power and/or operate a wireless
telecommunications facility.
See definition for "wireless telecommunications facilities."
The area on the ground within a prescribed radius from the
base of a wireless telecommunications facility, tower, or small cell
or DAS node. The fall zone is the area within which there is a potential
hazard from falling debris (such as ice) or collapsing material (such
as the support structure itself). For new towers, a hinge-point is
at times incorporated into the design to reduce the structure's
potential area of collapse in the case of a catastrophic failure.
The Federal Aviation Administration or its duly designated
and authorized successor agency.
The Federal Communications Commission or its duly designated
and authorized successor agency.
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
A tower that is tied to the ground or other surface by diagonal
cables.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point, even if said
highest point is an antenna, lightning rod or camouflaged element.
A self-supporting structure constructed of vertical metal
struts and cross braces forming a triangular or square structure which
often tapers from the foundation to the top.
Modification or upgrade to an existing wireless telecommunications
facility that substantially changes (see definition) the physical
dimensions or visual impact of any aspect of the facility, as determined
by the Village Board and/or Building Inspector. Major modifications
may include, but are not necessarily limited to, replacement of existing
antennas with new models resulting in an increase to the number and/or
height of the existing antennas in the array or on a utility pole;
an increase of the overall tower height by more than 10% of the originally
approved and/or constructed tower or support structure height (whichever
is less); or an increase to the dimensions of the existing ground-based,
rooftop, pole-mounted, or other equipment area (as determined by existing
perimeter fencing, existing heights of equipment shelters, aggregate
volume of utility-pole-mounted equipment, or other criteria) or proposed
lighting or beacon where one does not currently exist.
Modification or upgrade to an existing wireless telecommunications
facility that does not substantially change (see definition) the physical
dimensions or visual impact of any aspect of the facility, as determined
by the Building Inspector or Village Board (i.e., other than a major
modification). Minor modifications may include, but are not necessarily
limited to, replacement of existing antennas with new models that
results in equal or lesser number and/or equal or lesser height of
the existing antennas in the array or on the utility pole; no increase
to the overall tower or support structure height (or an increase in
tower/support structure height of less than 10% of the originally
approved and/or constructed height (whichever is less); or no changes
to the existing dimensions of the ground-based, rooftop, pole-mounted,
or other equipment area (as determined by existing perimeter fencing,
existing heights of equipment shelters, aggregate volume of utility-pole-mounted
equipment or other criteria). For modifications to permitted rooftop
or other structure (non-tower, non-small cell) facilities, the height
shall not be increased above five feet of the existing facility's
tallest element.
A streamlined, self-supporting pole structure constructed
of wood, steel or concrete with below-grade foundations and with no
exterior guy cables or anchors.
The structure or surface upon which antennas and ancillary
equipment are mounted and likely to be visible to the general public,
including but not limited to the following four types of mounts:
ROOF-MOUNTEDMounted on the roof of a building.
SIDE-MOUNTEDMounted on the side of a building.
STRUCTURE-MOUNTEDMounted on a telecommunications tower structure or structure other than a building, such as a utility pole. This may include an antenna array frame system, antennas mounted flush to the structure surface for tower systems, and small cells.
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint-stock company, association of two or more persons having a joint
common interest, or any other entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act, or subsequent FCC rulings.
The transmission RF emissions from operational wireless telecommunications
facilities.
A certified or licensed radio frequency (RF) engineer specializing
in electrical or microwave engineering, specifically the study of
radio frequencies.
A small receiver/relay transmitter designed to provide service
to areas that are not able to receive adequate coverage directly from
a primary sending and receiving site in a wireless communication network.
A place/land use (e.g., historic property, scenic overlook,
wetland) that may have an increased sensitivity to views or noise
generated by a wireless telecommunications facility.
The distance between one carrier's antenna or array
of antennas and another carrier's antenna or array of antennas.
The distance in feet between a structure or element of a
wireless telecommunications facility (e.g., tower, equipment shelter,
ground-based compound fencing) and a property line, right-of-way (ROW)
boundary, or an identified physical feature such as a structure on
the property or a natural feature such as a watercourse or regulated
wetland.
Low-powered wireless antennas and base stations that function
like cells in a mobile wireless network, typically covering localized
outdoor areas such as traffic and transit corridors, commercial or
shopping districts, and other places of congregation, and in areas
where additional network coverage and capacity may be required to
supplement existing wireless service. Small cell antennas and supporting
equipment are typically affixed to new or existing utility poles or
other structures and installed lower to the ground than conventional
panel antennas on telecommunications towers to provide wireless services
within a specific geographic area. Small cells are typically used
to provide wireless services for one provider. A single small cell
installation (e.g., one antenna and supporting equipment on a given
utility pole or other structure, with a maximum height from the grade
to the highest element of no greater than 50 feet) is referred to
as a "node." Any new support structures for a small cell will be 50
feet or less in height above ground level.
The official document or permit issued by the Board pursuant
to which an applicant is permitted to construct, maintain, and use
a wireless telecommunications facility as granted or issued pursuant
to this chapter. The Board is hereby authorized to review and approve,
approve with modifications, or disapprove special use permit applications
and site plans consistent with Village Law §§ 7-725-a
and 7-725-b.
The State of New York.
The State Environmental Quality Review Act of New York State
as codified in 6 NYCRR 617.
A method of installing and/or constructing wireless telecommunications
facilities with designs that conceal or disguise their presence (see
"camouflaged facility" definition). This may include but is not limited
to the use of color-matching, antenna concealment systems for small
cells and rooftop proposals, screening walls, artificial tree limbs
for new telecommunications towers, landscaping around ground-based
equipment areas, and installing ancillary equipment underground.
A pole, tower, ground-based equipment, or other building,
whether or not it has an existing antenna facility, that is used or
to be used for the provision of personal wireless service (whether
on its own or commingled with other types of services).
An increase in the size of an existing telecommunications
tower; other structure such as a rooftop, water tank, or utility pole
that accommodates a permitted antenna facility; or ground-based equipment
consisting of one or more of the following unless otherwise required
by law:
Height/antenna placement.
The mounting of antennas on a tower greater than 50 feet tall
or structure that would:
Increase structure height by more than 10% of the tower height
or antenna height originally approved or constructed (whichever is
less); or
The mounting of one additional antenna array with vertical separation
from the nearest existing antenna of up to 20 feet, if resulting tower
or structure height is increased by more than 10% of the height originally
approved or constructed.
The mounting of the proposed antenna may exceed the size limits set forth in this Subsection A if necessary, to avoid interference with existing antennas. For modifications to permitted DAS or small cell sites, the pole shall not be increased above 50 feet in height, and the aggregate volume of all antennas and ancillary equipment shall be a maximum of 40 cubic feet at any node. For modifications to permitted rooftop or other structure (non-tower, non-small cell) facilities, the height shall not be increased above five feet of the facility's tallest element;
Ground-based and ancillary equipment: the installation of additional
equipment cabinets or shelters that would increase the overall dimension
of the existing ground-based compound, rooftop, or other equipment
compound by more than 10% of the existing. This is including but not
limited to the perimeter of existing security fencing or the height
of the tallest existing element (e.g., top of ice bridge or shelter)
as measured from surrounding grade or other markers. New equipment
proposed at a small cell site that exceeds the aggregate volume noted
above may be proposed to be placed below grade;
Ground-based equipment: the excavation outside the current tower
or other structure site, defined as the current boundaries of the
leased or owned property surrounding the tower and any access or utility
easements currently related to the site. For small cell sites, no
equipment shall be installed at grade;
Ancillary equipment: the installation of new or additional generators,
resulting in increases to noise at the property line by more than
conditions stipulated in the Village code;
Lighting: the installation of new FAA- or FCC-required or other
lighting on the tower structure, or an increase in ground-based, rooftop,
or other lighting that increases impacts by more than 10% from permitted
conditions. Strobe or flashing lighting will not be permitted without
documentation of FAA or other applicable requirements; or
The addition of an appurtenance to the body of the tower or structure that would protrude horizontally from the edge of the existing support structure by three feet or more than the distance that existing appurtenances protrude from the edge of the existing support structure, except that the mounting of the proposed antenna may exceed the size limits set forth in this Subsection F if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable.
The transmission and reception of audio, video, data, and
other information by wire, radio, frequency, light, and other electronic
or electromagnetic systems.
Temporary in relation to all aspects and components of this
chapter, something intended to, or that does, exist for less than
180 days.
The Incorporated Village of Lake Success.
Any company which is licensed by the FCC to operate wireless
telecommunications facilities.
An existing, replacement, or new structure, facility, or
location designed or intended to be used as, or used to support, antennas
and ancillary or accessory equipment. It includes, without limit,
freestanding towers, lattice towers, guyed towers, monopoles, and
similar structures that employ camouflage technology, including, but
not limited to, structures such as a multistory building, church steeple,
silo, water tower, sign, utility poles, or other similar structures
intended to mitigate the visual impact of an antenna or the functional
equivalent of such. It is a structure intended for transmitting and/or
receiving radio, television, cellular, paging, personal telecommunications
services (including 4G-, LTE- and 5G-licensed frequencies), emergency
services, or microwave telecommunications, but excluding those used
exclusively for Village fire, police and other dispatch telecommunications,
or exclusively for private radio and private citizen's bands,
amateur radio and other similar telecommunications.
For purposes of this chapter, wireless transmitters are broadly
defined as any and all equipment, such as antennas, receivers, repeaters,
and meters, installed on a utility pole or other structure for purposes
of communications or data transmission. These include equipment utilized
by wireless carriers/service providers, public utility companies,
and other entities to render services to customers or provide communication/data
transfers among its personnel in accordance with all applicable licenses
and permits to operate such systems. Wireless transmitters located
in the ROWs shall be subject to the requirements of this chapter.
A.Â
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protects the Village's
health, safety, public welfare, environmental features and other aspects
of the quality of life specifically listed elsewhere in this section,
the Village Board hereby adopts an overall policy with respect to
a special use permit and/or building permit for wireless telecommunications
facilities for the express purpose of achieving the following goals:
(1)Â
Implementing an application process for person(s) seeking a special
use permit for wireless telecommunications facilities.
(2)Â
Implementing an application process for person(s) seeking a building
permit for:
(3)Â
Establishing a policy for examining an application for issuing a
special use permit or building permit for wireless telecommunications
facilities that is both fair and consistent, and in accordance with
applicable laws and regulations.
(4)Â
Establishing a policy for examining a building permit application
that is both fair and consistent.
(5)Â
Establishing reasonable time frames for granting or not granting
a special use permit for wireless telecommunications facilities, or
recertifying or not recertifying or revoking the special use permit
granted under this section.
(6)Â
Establishing reasonable time frames for granting or not granting
a building permit for a wireless telecommunications facility.
(7)Â
Promoting and encouraging, wherever possible, the sharing and/or
co-location of wireless telecommunications facilities among service
providers.
(8)Â
Promoting and encouraging, wherever possible, the placement, height
and quantity of wireless telecommunications facilities in such as
manner as to minimize adverse aesthetic impacts to the property, buildings
and other land uses adjacent to, surrounding and, in general, the
same area as the requested location of such wireless telecommunications
facilities. Recognizing the needs for network densification and service
in high-use areas along state highways and roads, the Lakeville Road
and Horace Harding Boulevard corridors, LIE service roads; Northern
Parkway and Marcus Avenue shopping districts, transit hubs and corridors;
and commercial/industrial areas.
B.Â
With respect to this application process, the Village Board shall
designate itself as the lead agency, pursuant to the New York State
Environmental Quality Review Act (SEQRA), unless otherwise provided
by SEQRA or other applicable law. The Board shall conduct an environmental
review of the proposed project in combination with its review of the
application under this chapter.
No person shall build, erect, or construct a wireless telecommunications facility upon any parcel of land within any zoning district within the Village unless a special use permit or building permit shall have been issued in accordance with this Chapter 85. The Village Board of Trustees is hereby authorized to review special use permit applications submitted pursuant to this section as set forth herein. The Building Inspector is hereby authorized to review building permit applications submitted pursuant to this section as set forth herein.
A.Â
All applicants for a special use permit or building permit for wireless
telecommunications facilities or any modification (major or minor)
of such facility shall comply with the requirements set forth in this
section. Applications for a special use permit for wireless telecommunications
facilities shall be made to the Village Board of Trustees. Applications
for a building permit for wireless telecommunications facilities shall
be made to the Building Inspector. Said board or Building Inspector
is the officially designated agency that is authorized to review,
analyze, evaluate and make decisions with respect to granting or not
granting, recertifying or not recertifying, or revoking special use
or building permits for wireless telecommunications facilities. The
Village may, at its discretion, delegate or designate other official
agencies of the Village to accept, review, analyze, evaluate and make
recommendations to the Board or Building Inspector with respect to
the granting or not granting, recertifying or not recertifying or
revoking special use permits for wireless telecommunications facilities.
B.Â
An applicant shall submit to the Village the number of completed
applications determined to be needed. The applicant may elect to schedule
a preapplication meeting to discuss the proposed facility and solicit
feedback from the Village Board and AAB prior to submitting the full
application.
C.Â
An application for a special use or building permit for wireless
telecommunications facilities shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information. The landowner, or ROW entity/pole owner, if different
from the applicant, shall also sign the application. At the discretion
of the Board or Building Inspector, any false or misleading statement
in the application may subject the applicant to denial of the application
without further consideration or opportunity for correction.
D.Â
Applications not meeting the requirements stated herein, or which
are otherwise incomplete, may be rejected by the Board or Building
Inspector.
E.Â
The applicant shall include with the application a written certification:
(1)Â
That the applicant's proposed wireless telecommunications facilities
will be maintained in a safe manner, and in compliance with all conditions
of the special use or building permit, without exception, as well
as with all applicable and permissible local codes, ordinances, and
regulations, including any and all applicable Village, state and federal
laws, rules and regulations.
(2)Â
That the applicant is authorized to do business in the State of New
York.
(3)Â
That the facility will be completed and will provide service within
180 days of the date of the grant of the special use permit.
(4)Â
There is nothing in the agreement between the applicant and property
owner/ROW owner that would limit or preclude the ability of the applicant
to share any new telecommunications tower or support structure that
it constructs.
F.Â
DAS, small cell nodes and wireless transmitters shall require a special
use permit unless the proposal is in accordance with the co-location
and minor modification definitions of the code, as determined by the
Village Board. For all proposed small cell/DAS nodes, the aggregate
volume of the antenna at each node, including antenna enclosure and
mount, will not exceed three cubic feet. The aggregate volume of all
other visible equipment, including but not limited to meter boxes,
radio shrouds, and conduits affixed to the utility pole, will not
exceed 28 cubic feet at each node. The maximum height (measured from
surrounding grade to top of the highest proposed element) shall not
exceed 50 feet for small cells, except as otherwise permitted by the
Village Board based on a review of supporting technical information
(e.g., height of an existing utility pole or structure on which small
cell equipment is proposed is greater than 50 feet). The minimum height
of any pole-mounted equipment shall not be less than eight feet above
surrounding grade. No at-grade equipment shall be permitted at small
cells or DAS nodes.
G.Â
The Village Board shall be empowered to request supporting information on agreements between the applicant and pole owner (structural analysis, communication zone where small cell equipment is allowed); information on the FCC-licensed provider(s) of wireless services utilizing DAS and small cells, including coverage and/or capacity need documentation; and technical information and samples of specifications, cut sheets, aggregate equipment volumes, heights of mounted equipment, and color/texture options for such DAS and small cell antennas and ancillary equipment, and to condition the issuance of a special use permit upon implementation of stealth installation or other measures which mitigate visual effects to the maximum extent possible. No more than five small cell nodes involving locations in county or state rights-of-way, inclusive of the areas noted in § 85-3A(8), shall be submitted in a single application to the Village Board, and no more than three small cell nodes involving other locations shall be submitted in a single application. DAS and small cell nodes located on structures other than utility poles (e.g., rooftops, water tanks, large commercial signage) shall require a special use permit. A building permit will be required for all small cell and DAS nodes located in the Village.
H.Â
Special use permit application requirements. All applications shall
contain the following:
(1)Â
Permit application form and checklist.
(2)Â
Visual and aesthetic details.
(3)Â
The name, address and phone number of the person submitting the application.
(4)Â
The name, address and phone number of the property owner, operator
and applicant and, if applicable, utility pole owner and ROW holder.
(5)Â
The postal address and tax map designation of the property and/or
right-of-way information such as utility pole number and coordinates.
(6)Â
The zoning district or designation in which the property is situated.
(7)Â
Size of the property stated both in square feet and lot line dimensions,
and a diagram showing the location of all lot lines. For sites proposed
within the right-of-way, the dimensions of the right-of-way and locations
of existing and proposed overhead/subsurface utilities and adjoining
property lines shall be indicated.
(8)Â
The location of the nearest residential structure.
(9)Â
The location of the nearest habitable structure.
(10)Â
A radius map, certified by its preparer, showing the name, address,
section, block and lot number on all property located within 500 feet
of any property line of the lot or parcel on which the new wireless
telecommunications facilities are proposed to be located.
(11)Â
The location, size and height of all structures on the property.
(12)Â
The location, size and height of all proposed and existing antennas
and all appurtenant structures, including support structures and accessory
equipment.
(13)Â
The type, location and size of all proposed and existing landscaping
and fencing.
(14)Â
The number, type and design of the antenna(s) proposed.
(15)Â
The make, model and manufacturer of the tower/pole, antenna(s) and
all ancillary equipment.
(16)Â
A description of the proposed wireless telecommunications facility
and antenna(s) and all related fixtures, structures, appurtenances
and apparatus, including heights above existing grade, materials,
color and lighting.
(17)Â
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service and eliminate a substantial gap in service.
The location(s) of the service gap areas shall be documented and described
with supporting technical information outlined below If the applicant
is a tower or infrastructure company and not an FCC-licensed wireless
carrier, the name(s) of the wireless carrier(s) and associated information
for the carrier(s).
(18)Â
Documentation as a report with narrative and graphical representation
that describes the need for service, with inclusion of existing cell
sites and justification of why the proposed site is necessary.
(19)Â
Signal propagation and/or capacity studies for the proposed site
and all adjoining proposed, in-service, or existing sites of that
wireless carrier that demonstrate service shortfalls and the need
for the proposed facility. The submitted technical information shall
include all FCC-licensed frequencies that are proposed in the application
along with In-Building and In-Vehicle (or comparable) signal strengths
for low-band and high-band frequencies that are proposed. Signal strength
used in the modeling (e.g., RSRP) shall also be noted and disclosed.
A report certified by a qualified RF engineer shall be provided which
describes the technical submittals and describes why a higher-priority
location is not available or technically feasible. Name and description
of modeling software and a description of the model inputs (e.g.,
level of service), shall be provided.
(20)Â
To corroborate signal propagation maps and need for a new facility,
drive testing data and associated maps capturing signal provided from
existing sites in the area shall be required for the application.
The drive test data shall include a description of the methods and
instrumentation used.
(21)Â
The actual intended transmission and the maximum effective radiated
power in watts of the antenna(s) and antenna sectors.
(22)Â
Direction of maximum lobes and associated radiation of the antenna(s)
and antenna sectors.
(23)Â
The frequency, modulation and class of service of radio or other
transmitting equipment, inclusive of licensed cellular, PCS, 4G, LTE,
AWS, 5G and other technologies.
(24)Â
Certification that the NIER levels at the proposed site are within
the permissible threshold levels adopted by the FCC, with supporting
modeling, data, and other calculations that demonstrate the current
FCC health-based criteria.
(25)Â
Certification that the proposed antenna(s) will not cause interference
with other telecommunications devices.
(26)Â
Copy of lease or other agreement between the applicant and the property
or ROW owner.
(27)Â
Structural analysis or certification by a New York State PE that
an existing or new structure on which a wireless telecommunications
facility is proposed has adequate structure capacity to accommodate
such installation.
(28)Â
A noise analysis, defining sound in dBA from the proposed facility
to the nearest property line.
(29)Â
Site plan. An applicant shall be required to submit a site plan as
follows: The site plan shall show all existing and proposed structures
and improvements, including roads, access, existing ROWs, property
lines, and shall include grading plans for new facilities, roads,
parking areas, landscaping, and fencing. The site plan shall also
include documentation on the proposed intent and capacity of use as
well as a justification for the height of any tower or antennas and
justification for any land or vegetation clearing required. Additionally,
the Village Board of Trustees shall require that the site plan and
landscaping plan addresses other standards listed within this section,
with particular attention to visibility from key viewpoints within
and outside of the municipality.
(30)Â
Applicant's and/or owner's proposed tower/pole maintenance
and inspection procedures and related system of records.
(31)Â
A copy of the FCC license applicable for the intended use of the
wireless telecommunications facilities. For DAS and small cell facilities
in a ROW, a copy of the New York State Power Service Commission license
to locate within the right-of-way shall also be submitted.
(32)Â
A written report demonstrating the applicant's meaningful efforts
to secure shared use of existing wireless telecommunications facilities,
or the use of alternative buildings, existing small cell sites or
other existing structures within or adjoining the Village. Copies
of written requests and responses for shared use shall be provided
to the Village Board as part of the application, along with any letters
of rejection stating the reason for rejection. If co-locating at existing
cell sites cannot work from a technical basis, the applicant shall
submit a technical report describing these supporting analyses. A
written technical report from an engineer that the proposed tower
or telecommunications facilities cannot be installed or co-located
on another existing tower or usable antenna support structures owned
by others located within a one-half-mile radius of the proposed facility.
(33)Â
Certify that the wireless telecommunications facility, foundation
and attachments are designed and will be constructed to meet all local,
Village, state and federal structural requirements for loads, including
wind and ice loads. The New York State Uniform Building Code and the
latest release of TIA-222 shall be utilized and referenced on drawings
and in the structural analyses.
(34)Â
Certify that the wireless telecommunications facility will be effectively
grounded and bonded so as to protect persons and property and installed
with appropriate surge protectors.
(35)Â
Long-form EAF with visual analysis.
(36)Â
Demonstrate and provide in writing and/or by drawing effective screening
from view the ground-based equipment, pole-mounted equipment, and
all related facilities and structures of the proposed facility.
(37)Â
Visual impact assessment which shall include:
(a)Â
A Zone of Visibility Map shall be provided in order to determine
locations from which the wireless telecommunications facility may
be seen.
(b)Â
Pictorial representations of before and after views (photosimulations)
from key viewpoints both inside and outside (if applicable) of the
Village as may be appropriate, including, but not limited to, state
highways and other major roads; state and local parks; other public
lands; historic districts; preserves and historic sites normally open
to the public; residential properties from which the site is visible,
and from any other location where the site is visible to a large number
of visitors, travelers or residents. The applicant may elect to determine
the appropriate key sites prior to a balloon test.
(c)Â
An assessment of the visual impact of the wireless telecommunications
facility ground-based equipment, small cell equipment mounted to the
pole, at street level, from abutting and adjacent properties and streets
which will demonstrate the need or appropriateness of screening of
said structures.
(d)Â
Aesthetic impacts and sight lines should be shown and considered
from the perspective of nearby residences as well as street views.
Aesthetic impact evaluation includes consideration of adverse visual
impacts on the character of the area, the area's existing features
and land use and how it appears, and the existence of similar structures
in the area.
(e)Â
Photo examples of existing wireless facilities (such as monopoles,
stealth tree monopoles, other structures, small cell nodes) that are
similar in appearance and height to what is being proposed.
(38)Â
Demonstrate that the facility has been sited to minimize the adverse
visual and physical impacts and effect on the environment, the adjacent
neighborhood, and the Village and its character.
(39)Â
In order to better inform the public of the potential visual impact
of a new wireless telecommunications facility, the applicant shall,
at the discretion of the Board, conduct a balloon test prior to the
public hearing on the application. The applicant shall arrange to
fly, or raise upon a temporary mast, a brightly colored balloon a
minimum of three feet in diameter, at the maximum height of the proposed
new wireless telecommunications facility. The dates (including a second
date, in case of poor visibility on the initial date), times and location
of this balloon test shall be published in the official newspaper
of the Village. The applicant shall inform the Village, in writing,
of the dates and times of the test, at least 14 days in advance. The
balloon shall be flown for at least three consecutive hours between
9:00 a.m. and 4:00 p.m. on the initial date. The secondary date may
be on a weekday.
(40)Â
An analysis, completed by a qualified individual or entity, to determine
if the wireless telecommunications facility or existing structure
intended to support wireless facilities requires lighting under Federal
Aviation Administration Regulation Part 77. This requirement shall
be for any new wireless telecommunications facility or for an existing
structure or building where the application increases the height of
the structure or building. If this analysis determines that the FAA
must be contacted, then all filings with the FAA, all responses from
the FAA and any related correspondence shall be provided to the Village
in a timely manner.
I.Â
Any and all representations made by the applicant or its counsel
to the Board, on the record or otherwise, during the application process,
whether written or verbal, shall be deemed a part of the application
and may be relied upon in good faith by the Board.
J.Â
All utilities at a wireless telecommunications facilities site shall
be installed underground unless otherwise required by law, and in
compliance with all applicable ordinances, rules and regulations of
the Village, including specifically, but not limited to, the National
Electrical Safety Code and the National Electrical Code, where appropriate.
The Board may waive or vary the requirements of undergrounding installation
of utilities whenever, in the opinion of the Board, such variance
or waiver shall not be detrimental to the health, safety, general
welfare and environment, including the visual and scenic characteristics
of the area. For small cells, no equipment shall be situated at grade
unless approved by the Board or Building Inspector.
K.Â
Both the wireless telecommunications facility and any and all accessory
or associated facilities shall maximize the use of building materials,
colors and textures designed to blend with the structure to which
they may be affixed, and/or to harmonize with the natural surroundings,
which shall include the utilization of stealth or concealment technology
as may be required by the Board.
L.Â
Telecommunications sites shall provide an access road, turnaround
space, and parking to assure adequate emergency and service access.
Existing roads, whether public or private, shall be used to the maximum
extent possible. Road construction shall, at all times, minimize ground
disturbance and the cutting of vegetation. Road grades shall closely
follow natural contours to assure minimal visual disturbance and reduce
soil erosion. No access road or parking shall be proposed for DAS
or small cell sites located in a right-of-way.
M.Â
A person who holds a special use or building permit for wireless
telecommunications facilities shall construct, operate, maintain,
repair, provide for removal of, modify or restore the permitted wireless
telecommunications facilities in strict compliance with all then-current,
applicable technical, safety and safety-related codes adopted by the
Village, state, or United States, including but not limited to the
most recent editions of the National Electrical Safety Code, the National
Electrical Code, FAA, and FCC, as well as accepted and responsible
workmanlike industry practices and recommended practices of the National
Association of Tower Erectors as modified and updated from time to
time. The codes referred to are codes that include, but are not limited
to, use, construction, building, electrical, fire, safety, health
and land use codes. In the event of a conflict between or among any
of the preceding, the more stringent shall apply.
N.Â
A holder of a special use permit granted under this chapter shall
obtain, at its own expense, all permits, including a building permit
from the Village, and licenses required by applicable law, rule, regulation
or code, and must maintain the same, in full force and effect, for
as long as required by the Village or other governmental entity or
agency having jurisdiction over the permittee.
O.Â
With respect to the application process, the Board will seek lead
agency status pursuant to SEQRA. The Board shall conduct an environmental
review of the proposed project pursuant to SEQRA in combination with
its review of the application and site plan pursuant to this chapter.
Other building permit applications associated with new wireless telecommunications
facilities which have obtained a special use permit will not require
a separate SEQRA submittal unless otherwise required by law.
P.Â
Shared use of facility.
(1)Â
The owner of the proposed new wireless telecommunications facility,
and his/her successors in interest, shall negotiate in good faith
for the shared use of the proposed wireless telecommunications facility
by other wireless service providers in the future. Copies of correspondences
soliciting co-location interest from other commercial carriers shall
be submitted with the letter to the Board. Failure to abide by the
conditions outlined in the letter may be grounds for revocation of
the special use permit. The letter shall commit the new tower owner
or wireless facility operator and their successors in interest to
respond within 60 days to a request for information from a potential
shared-use applicant.
Q.Â
Negotiate in good faith concerning future requests for shared use
of the new wireless telecommunications facility by other telecommunications
providers.
(1)Â
Allow shared use of the new wireless telecommunications facility
if another telecommunications provider agrees in writing to pay reasonable
charges. The charges may include, but are not limited to, a pro rata
share of the cost of site selection, planning, project administration,
land costs, site design, construction and maintenance financing, return
on equity, less depreciation, and all of the costs of adapting the
wireless telecommunications facility or equipment to accommodate a
shared user without causing electromagnetic interference.
(2)Â
Failure to abide by the conditions outlined above shall be grounds
for revocation of the special use permit for the wireless telecommunications
facility.
R.Â
The holder of a special use permit shall notify the Village of any
intended modification of a wireless telecommunications facility and
shall apply to the Board to modify, relocate or rebuild a wireless
telecommunications facility.
A.Â
The Building Department may issue building permits for proposed minor
modifications and proposed co-locations at existing, permitted wireless
telecommunications facilities and for proposed co-locations at other
structures (e.g., rooftops, water tanks) after the first such co-location;
provided that all of the requirements set forth herein are met. With
the Building Department's building permit approval, a new or
amended special use permit or site plan shall not be required for
the below-specified minor modifications and co-locations:
(1)Â
If the applicant is proposing minor modifications to an existing
permitted wireless facility, as defined in this section, and:
(a)Â
It is demonstrated that transmit power, frequency/class of service,
and NIER levels remain within FCC MPE criteria; and
(b)Â
It is demonstrated that the proposed modification equipment
and installation would not exceed the structural capacity of the existing
facility or structure, including but not limited to foundations, supports,
and existing antenna mounts; and
(c)Â
No additional local, county, or state approvals/permits are
required (e.g., FAA, NYSDOT, NYSDEC), other than a building permit;
and
(2)Â
If the applicant is proposing co-location of new wireless equipment
at an existing wireless telecommunications facility as defined in
this chapter, and:
(a)Â
For proposed co-locations at an existing wireless telecommunications
facility where the proposed co-location is on a permitted tower/pole
which contains one or more telecommunications facilities that have
been approved in accordance with this section, provided that: the
height of the existing structure is not increased by more than 10%
of the originally approved tower height at time of construction and
provided that it does not increase the overall tower height to over
150 feet; there is no change to the lighting scheme at the site or
noise at the nearest property line; and all height, setback and design
requirements as set forth in this section or in the original site
plan approval are met. All accessory structures, including, but not
limited to, equipment, equipment cabinets, equipment sheds/shelters,
and generators, must also comply with the standards set forth in this
section; and
(b)Â
For proposed co-locations on a rooftop or other structure, including,
but not limited to, water tanks, and utility poles where one or more
wireless telecommunications facility exists at the time of application
and where no increase in height is proposed (as determined by the
existing rooftop element with the highest elevation or the existing
antenna height on the support structure), provided that there is no
change to the lighting scheme at the site or noise at the nearest
property line, and provided that all height, setback, and design requirements
as set forth in this section or in the original site plan approval
are met. Antennas and all accessory structures, including, but not
limited to, equipment, cables, equipment cabinets, equipment sheds/shelters,
and generators, must also comply with the standards set forth in this
section, and all other provisions of law in this chapter and outside
of this chapter of the Village Code. Co-location of small cells/DAS
on a common utility pole may be entertained to reduce the proliferation
and consolidate these cell sites; however, the height of any utility
pole may not be increased, and the aggregate volume of the antenna
and visible ancillary equipment at each node location shall not increase
above that which was approved by more than 25%. The Building Inspector
will determine if additional bulk, height, or other potential visual
impacts will necessitate referral of such co-location applications
to the Village Board; and
(c)Â
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service and eliminate a substantial gap in service
is provided; and
(d)Â
It is demonstrated that transmit power, frequency/class of service,
and NIER levels remain within FCC MPE criteria; and
(e)Â
It is demonstrated that the proposed co-location equipment and
installation would not exceed the structural capacity of the existing
wireless facility or other support structure, including but not limited
to foundations, supports, and existing antenna mounts; and
(f)Â
No additional local, county, or state approvals/permits are
required (e.q., FAA, NYSDOT, NYSDEC), other than a building permit;
and
(g)Â
The existing wireless telecommunications facility or structure
complies with the provisions of this section and all other provisions
of law in this chapter and outside of this chapter, including but
not limited to all applicable zoning restrictions and building permit
requirements.
B.Â
The issuance of a building permit for a minor modification or co-location
as described above is a Type II Action under SEQR.
C.Â
Building permit application requirements. A current building permit
application form and checklist shall be submitted to the Building
Department and Village Board, which shall certify that the application
is complete before the application is reviewed. Waivers from certain
application items may be proposed in writing at the time of the application.
D.Â
The Building Department may refer minor modification and co-location
applications to the Village Board for review of and recommendation
on visual effects, proximity to sensitive receptors, safety considerations,
or other reasons in accordance with this chapter. The Village Board
may recommend that an application be considered a major modification
or otherwise require a special use permit, provided that it finds
and states that the facility for which the permit is requested would,
if erected, constructed, or altered as proposed, cause one or more
harmful visual effects under guidelines herein. Prior to recommendation
that an application be considered as a major modification or for a
special use permit, the Village Board shall afford the applicant an
opportunity to meet with it and discuss suggestions for changes in
the application. The Village Board may determine the application to
be a minor modification upon finding that the facility or structure
for which the permit is requested, if erected or altered in accordance
with the submitted plan, would be in harmony with this chapter. If
the Building Department determines that a minor modification, co-location,
or DAS/small cell application is a major modification or Village Board
review is requested, then the applicant will be notified within 30
business days of receipt of the application, notwithstanding all other
provisions of law outside of this chapter.
A.Â
Applicants for wireless telecommunications facilities shall locate,
site and erect said wireless telecommunications facilities in accordance
with the following priorities, one being the highest priority and
six being the lowest priority. The applicant shall demonstrate to
the Board its attempts to locate on the highest-priority sites available.
(1)Â
On Village-owned properties or facilities;
(2)Â
On electric, telephone and any other existing utility poles outside
of residentially zoned areas and on the following major thoroughfares:
Lakeville Road, Horace Harding Boulevard, LIE service roads, Northern
Parkway and Marcus Avenue;
(3)Â
On existing nonresidential structures such as water towers, multistory
buildings, church steeples, and existing telecommunications towers
or other similar nonresidential structures when placement of wireless
facilities, including but not limited to antennas, does not increase
the height of the structure;
(4)Â
On nonresidential properties such as schools, churches, universities,
clubs, similar-type nonresidential properties, and commercial property;
(5)Â
Sites in excess of 100 acres; and
(6)Â
On other properties in the Village. No existing structure shall be
modified to serve as a transmission tower unless in conformity with
the regulations established herein.
B.Â
Other locations not meeting the above priority criteria shall only
be permitted by the Board when the applicant demonstrates to the Board's
satisfaction that a priority site is not available and the alternative
site, to the maximum extent practicable, protects and preserves the
aesthetic qualities, open space characteristics of the Village, the
property values of the community and the health, safety, and welfare
of Village residents.
C.Â
Towers shall be permitted only as a last alternative after all other
transmission alternatives have been proven not to be effective to
eliminate substantial gaps in service. Guy wire towers shall not be
permitted.
D.Â
If the need for a new tower is proven, the tower shall be no taller
than the minimum height necessary to eliminate substantial gaps in
service in the area.
E.Â
If the proposed site is not the highest priority listed in Subsection A of this section, then a detailed explanation must be provided as to why any individual site(s) of any higher priority type was not selected or available. The applicant seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
F.Â
An applicant may not bypass sites of higher priority by stating that
the site proposed is the only site leased or selected. An application
shall always address co-location as the first preference of the Village.
If such option is not proposed, the applicant must explain to the
reasonable satisfaction of the Board why co-location is not feasible.
G.Â
Notwithstanding the above, the Village may approve any site located
within an area in the above list of priorities, provided that the
Village finds that the proposed site is in the best interest of the
health, safety and welfare of the Village and its inhabitants and
will not have a deleterious effect on the aesthetic nature and character
of the community, the neighborhood and on nearby property values.
Notwithstanding the above, the Village may disapprove any site located
within an area in the above list of priorities, provided that the
Village finds that the proposed site is not in the best interest of
the health, safety and welfare of the Village and its inhabitants
and will have a deleterious effect on the aesthetic nature and character
of the community, the neighborhood and on nearby property values.
H.Â
The applicant shall submit a written report demonstrating the applicant's
review of the above categories of locations in order of priority,
demonstrating the reason for the site selection. If appropriate, based
on selecting a site of lower priority, a detailed written explanation
shall be included with the application, explaining why categories
of sites of a higher priority were not selected or available.
I.Â
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Village may
disapprove an application for any of the following reasons:
(1)Â
Conflict with safety and safety-related codes and requirements;
(2)Â
Conflict with the historic nature or aesthetic character of a neighborhood
or historical district;
(3)Â
The use or construction of wireless telecommunications facilities
which is contrary to an already stated purpose of a master plan or
specific zoning or land use designation;
(4)Â
The placement and location of wireless telecommunications facilities
which would create an unacceptable risk, or the reasonable probability
of such, to residents, the public, employees and agents of the Village,
or employees of the service provider or other service providers; or
(5)Â
Conflicts with the provisions of this chapter or any applicable laws
and regulations.
A.Â
Co-locating on existing wireless telecommunications facilities or
other structures without increasing the height, as opposed to the
construction of a new wireless telecommunications facility or increasing
the height of the existing facility, shall be preferred by the Village.
The applicant shall submit a comprehensive report inventorying existing
wireless telecommunications facilities and other suitable alternative
structures within a two-mile radius of the location of any proposed
new site, major modification, or wireless telecommunications facilities,
and demonstrate conclusively why an existing wireless telecommunications
facility or other suitable structure cannot be used.
B.Â
An applicant intending to locate on an existing wireless telecommunications
facility or other suitable structure shall be required to document
the consent of the existing owner to permit its use by the applicant.
C.Â
Such shared use shall consist only of the minimum antenna array necessary
to provide service primarily and essentially within the Village.
A.Â
The applicant shall submit documentation justifying the total height
of any wireless telecommunications facility and/or antenna or antenna
array. Such documentation will be analyzed in the context of the justification
of the height needed to provide service to the Village and surrounding
area. Any new support structures for DAS or small cells will be 50
feet or less in height above ground level. No small cell or DAS antenna
or supporting element shall extend more than six feet above the height
of the structure.
B.Â
If the need for a new wireless telecommunications facility can be
proven, the maximum permitted height of a wireless telecommunications
facility shall be no higher than the minimum height necessary to eliminate
substantial gaps in service, whether in whole or in part.
C.Â
Antennas and accessory equipment of wireless telecommunications facilities
situated on existing building roofs shall not extend greater than
15 feet above the roofline or 10 feet above the highest existing rooftop
element.
A.Â
All wireless telecommunications facilities shall employ stealth design
measures, as determined by the Board or Building Inspector. This may
be determined based on before and after simulation provided by the
applicant.
B.Â
Wireless telecommunications towers shall not be artificially lighted
or marked, except as required by law, or as part of a stealth design
measure such as a street lamp.
C.Â
Wireless telecommunications facilities shall be galvanized or, if
deemed necessary, painted with a rust-preventive paint of an appropriate
color to harmonize with the surroundings and shall be maintained in
accordance with the requirements of this chapter.
D.Â
If lighting is required, the applicant shall provide a detailed plan
for sufficient lighting of as unobtrusive and inoffensive an effect
as is permissible under applicable regulations, and an artist's
rendering or other visual representation showing the effect of light
emanating from the site on neighboring habitable structures within
1,500 feet of all property lines of the parcel on which the wireless
telecommunications facilities are located.
E.Â
Wireless telecommunications facilities and all related cabling that
are colocated on a structure other than a wireless telecommunications
facility shall be of a color that matches the color of the structure
to which the facilities are attached.
F.Â
In all cases, structures offering slender silhouettes (i.e., monopoles)
shall be preferable to freestanding structures (i.e., lattice), except
where such freestanding structures offer capacity for future co-location.
Towers should be designed and sited to avoid, whenever possible, application
of FAA lighting and painting requirements.
G.Â
The Village's Aesthetic Guidelines for Wireless Telecommunications
Facilities shall be consulted for preferred aesthetic and mitigation
techniques, including, but not limited to, colors, textures, mounting
options, small cell and DAS node configurations, stealth tree design
criteria such as branch density and taper, ground-based equipment,
and stealth options. The guidelines will be kept on file at the Building
Department.
Security of facilities. All wireless telecommunications facilities
and antennas shall be located, fenced or otherwise secured in a manner
which prevents unauthorized access, specifically as follows:
A.Â
All antennas, towers and other supporting structures, including guy
wires, shall be made inaccessible to individuals and constructed or
shielded in such a manner that they cannot be run into or climbed.
B.Â
Transmitters and telecommunications control points shall be installed
so that they are readily accessible only to persons authorized to
operate or service them.
C.Â
A monitor process or security alarm system shall be provided that
will be contracted with an alarm company to contact Village of Lake
Success Police Department.
Wireless telecommunications facilities shall contain a sign
no larger than is required to provide adequate notification to persons
in the immediate area of the presence of an antenna that has transmission
capabilities and shall contain the name(s) of the owner(s) and operator(s)
of the antenna(s) as well as emergency phone number(s). The sign shall
be placed on the equipment shelter or cabinet located on the premises
and be visibly able to be read from the access point of the site.
Smaller signage for small cell and DAS nodes shall be affixed to the
subject pole or pole-mounted equipment, or otherwise as determined
by the Village Board or Building Inspector in accordance with FCC
regulations. The sign shall not be lighted, unless lighting is required
by applicable law, rule or regulation. The sign shall be approved
by the Village Board or Building Inspector before installation. No
other signage, including advertising, shall be permitted on any facilities,
antennas, antenna supporting structures or antenna towers, unless
required by law.
A.Â
All proposed structures associated with a wireless telecommunications
facility shall be set back to comply with applicable minimum setback
requirements for the zoning district in which the property is situated.
On poles or other public utility structures on public utility rights-of-way,
the setback shall be as required by the utility or any existing or
future governing law or regulation. Proposed towers and their associated
equipment shall be set back a minimum of 110% of the height of the
tower above finished grade, from all property lines and existing structures.
Additional setbacks may be required by the Village Board to contain,
on-site, substantially all ice-fall or debris from tower failure,
and/or to preserve privacy of adjoining residential and public property.
Setbacks shall apply to all tower parts and to any accessory facilities.
B.Â
Setbacks for antennas and accessory structures associated with wireless
telecommunications facilities located on existing rooftops shall be
set back at least 10 feet from the building edge or flush-mounted
to the sides of the building.
A.Â
Landscaping and/or other screening and visual mitigation treatments,
including, but not limited to, the use of camouflage, stealth or concealment
technologies or treatments, shall be required to minimize the visual
and aesthetic impact of such facility.
B.Â
All ground-based equipment and structures shall be placed so as not
to be directly or easily visible from any property line.
C.Â
Accessory and ground-based equipment facilities shall maximize the
use of building materials, colors and textures designed to blend with
the natural surroundings.
D.Â
Existing on-site vegetation shall be preserved to the maximum extent
possible, and no cutting of trees exceeding four inches in diameter
(measured at a height of four feet off the ground) shall take place
without prior approval of the Village Board. All existing trees over
four inches in diameter shall be located on the site plan. Clearcutting
of all trees in a single contiguous area exceeding 2,000 square feet
shall be prohibited.
E.Â
Deciduous or evergreen tree plantings may be required to screen portions
of the tower from nearby residential property as well as from public
sites known to include important viewsheds or vistas. Where the site
abuts residential or public property, including streets, the vegetative
screening shall be required. Plantings consisting of at least one
row of native evergreen shrubs or trees capable of forming a continuous
hedge at least 10 feet in height within two years of planting shall
be provided to effectively screen the ground-based equipment and accessory
facilities. In the case of poor soil conditions, planting may be required
on soil berms to assure plant survival. Plant height in these cases
shall exclude the height of any berm. Required vegetation shall be
maintained as a condition of the special use permit.
Noise-producing equipment shall be sited and/or insulated to
minimize any increase in noise above ambient levels as measured at
the property line.
A.Â
The Board may retain any attorney, consultant and/or expert necessary
to assist it in reviewing and evaluating the application, including
the construction, modification and inspection of the site, once permitted,
and any requests for recertification.
B.Â
An applicant shall deposit with the Village funds sufficient to reimburse
the Village for all reasonable costs of such attorney, consultant
and expert evaluation and consultation to the Board in connection
with the review of any application, including the construction and
modification of the site, once permitted. The initial deposit shall
be $5,000. The placement of the $5,000 with the Village shall precede
any work related to or necessitated by the applicant's contact
with the Village. The Village will maintain a separate escrow account
for all such funds. In reviewing the application, the Village's
consultants/experts shall invoice the Village for their services at
the consultant's/expert's standard rates, including the
construction and modification of the site, once permitted. If at any
time during the process this escrow account has a balance less than
$2,500, the applicant shall immediately, upon notification by the
Village, replenish said escrow account so that it has a balance of
at least $5,000 as determined by the Village. Such additional escrow
funds shall be deposited with the Village before any further action
or consideration is taken on the application. In the event that the
amount held in escrow by the Village is more than the amount of the
actual invoicing at the conclusion of the project, the remaining balance
shall be promptly refunded to the applicant. In the event the amount
deposited by the applicant is insufficient to pay the actual cost
of the Village consultants, the applicant shall pay any additional
amount due prior to the issuance or denial of the special use permit.
C.Â
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
D.Â
The applicant shall also reimburse the Village for the actual and
necessary charges for legal fees which have been incurred by the Village
in connection with the application.
E.Â
Any application submission shall be simultaneously submitted to the
Board's consultants by the applicant.
A.Â
No person shall be permitted to site, place, build, construct, modify
or prepare any site for the placement or use of wireless telecommunications
facilities as of the effective date of this chapter without having
first obtained a special use permit or building permit for wireless
telecommunications facilities. Notwithstanding anything to the contrary
in this section, no special use permit or building permit shall be
required for those exceptions noted in the definition of "wireless
telecommunications facilities."
B.Â
All wireless telecommunications facilities legally existing on or
before the effective date of this chapter shall be allowed to continue
as they presently exist; provided, however, that any modifications
(minor or major; co-location) of an existing wireless telecommunications
facility must comply with the provisions of this chapter.
A.Â
Prior to the approval of any application for a special use permit
for wireless telecommunications facilities, a public hearing shall
be held by the Board, notice of which shall be published in the official
newspaper of the Village no less than 10 calendar days prior to the
scheduled date of the public hearing. The applicant shall notify all
landowners, in writing, whose property is located within 500 feet
of any property line of the lot or parcel on which the new wireless
telecommunications facilities are proposed to be located, and any
property owner or organization directly impacted by the proposed facility
as determined by the Board, by certified mail, return receipt requested,
no less than 10 calendar days prior to the scheduled date of the public
hearing.
B.Â
There shall be no public hearing required for an application to co-locate
on an existing wireless telecommunications facility or other structure
or minor modifications, provided that there is no proposed increase
in the height of the wireless telecommunications facility or other
structure, including attachments thereto.
C.Â
The Board shall schedule the public hearing referred to in Subsection A of this section once it determines that the application is complete. The Village, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary. The Board may waive any part or item to be contained in the application upon written request of the applicant for good cause shown, as determined by the Board.
A.Â
The Board will undertake a review of an application pursuant to this
chapter in a timely manner, consistent with its responsibilities with
SEQRA, and shall act within a reasonable period of time given the
relative complexity of the application and the circumstances, with
due regard for the public's interest.
B.Â
The Board may refer any application or part thereof to any advisory
or other committee for a nonbinding recommendation.
C.Â
After the public hearing and after formally considering the application,
the Board may approve, approve with conditions, or deny a special
use permit. The Board's decision shall be in writing and shall
be supported by substantial evidence contained in the record. The
burden of proof for the grant of the permit shall be upon the applicant.
D.Â
Construction of a wireless telecommunications facility permitted under this chapter shall be started within 90 days of the date of the grant of the special use permit and be completed, obtain a certificate of completion, and provide service within 180 days of the date of the grant of the special use permit. If the requirements of this Subsection D are not complied with, the wireless telecommunications facility shall be deemed to have been abandoned, the special use permit shall be revoked, and the provisions of § 85-28 shall be enforced.
A.Â
Expiration; recertification request.
(1)Â
All special use permits approved pursuant to this chapter shall expire
five years from the date of issuance, unless between 12 months and
six months prior to the five-year anniversary date of the special
use permit, and all subsequent five-year anniversaries of the issuance
of the original special use permit for wireless telecommunications
facilities, the holder of a special use permit for such facility shall
submit a signed, written request to the Board for recertification.
For sites that accommodate equipment of more than one FCC-licensed
commercial carrier, a single recertification for the site, encompassing
all carrier information, shall be submitted for recertification. Each
small cell or DAS node shall be recertified individually by the Building
Department. The Board may reserve the right to assign recertification
reviews to the Building Inspector.
(2)Â
For wireless telecommunications facilities that were approved in
accordance with this chapter via a building permit (and where a special
use permit was not required), the Building Inspector will issue recertifications.
(3)Â
In the written request for recertification, the holder of such special
use permit or building permit shall include the following:
(a)Â
The name of the holder of the permit for the wireless telecommunications
facility, the tower owner/operator if not the same as the permit holder,
and the property owner;
(b)Â
If applicable, the number or title of the permit;
(c)Â
The date of the original granting of the permit;
(d)Â
Whether the wireless telecommunications facility or support
structure has been moved, relocated, rebuilt, or otherwise modified
since the issuance of the permit and, if so, in what manner;
(e)Â
If the wireless telecommunications facilities or support structure
have been moved, relocated, rebuilt or otherwise modified, then whether
the Board or Building Department approved such action, under what
terms and conditions, and whether there has been compliance with the
terms and conditions;
(f)Â
Any requests for waivers or relief of any kind from the requirements
of this section and any requirements for a permit;
(g)Â
That the wireless telecommunications facility or support structure
is in compliance with the permit and all applicable codes, laws, rules
and regulations;
(h)Â
Recertification that the wireless telecommunications facility
and attachments are designed and constructed and continue to meet
all local, Village, state and federal structural requirements for
loads, including wind and ice loads. Such recertification shall be
made by a professional engineer, licensed in the state, the cost of
which shall be borne by the applicant; and
(i)Â
RF emissions compliance statement (cumulative, including all
co-locators, if applicable).
B.Â
The facility is subject to an annual inspection by the Lake Success
Building Inspector to make certain that the facility conforms to all
safety and building codes.
C.Â
If, after such review, the Board or Building Inspector determines that the permitted wireless telecommunications facility is in compliance with the permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Board or Building Inspector shall issue a recertification permit for the wireless telecommunications facility, which may include any new provisions or conditions that are mutually agreed upon with the permit holder or required by applicable statutes, laws, ordinances, codes, rules or regulations. If, after such review, it is determined that the permitted wireless telecommunications facility is not in compliance with the permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the Board or Building Inspector may refuse to issue a recertification of the permit for the wireless telecommunications facility, and in such event such wireless telecommunications facility shall not be used after the date that the applicant receives written notice of the decision from the Village. Any decision requiring the cessation of use of the facility or imposing a penalty shall be in writing and supported by substantial evidence contained in the record and shall be promptly provided to the owner of the facility. In the event the wireless telecommunications facility shall not be brought into compliance within 90 days from the date of the decision of the Board or Building Inspector, the facility shall be removed by the permittee in accordance with § 85-29.
D.Â
If the applicant represents that the wireless telecommunications facility can be replaced by a facility of improved visual appearance through the use of stealth technology pursuant to Subsection A(3)(g) of this section, the permit shall be renewed on the condition that the wireless telecommunications facility shall be replaced by a wireless telecommunications facility of improved stealth screening as approved by the Board or Building Inspector prior to the expiration of the conditional renewal.
E.Â
If the applicant has submitted all of the information requested and required by this chapter, and if the review is not completed, as noted in Subsection B of this section, prior to the five-year anniversary date of the permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facility shall receive an extension of the permit for up to six months, in order to complete the recertification review.
F.Â
If the holder of a permit for a wireless telecommunications facility does not submit a request for recertification of such permit within the time frame noted in Subsection A of this section, then such permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the permit, or subsequent five-year anniversaries.
The extent and parameters of a permit for wireless telecommunications
facilities shall be as follows:
A.Â
Such permit shall be nonexclusive.
B.Â
Such permit shall not be assigned, transferred or conveyed without
the express prior written consent of the Village of Lake Success,
and such consent shall not be unreasonably withheld or delayed.
C.Â
Such 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 permit for wireless telecommunications
facilities or for a material violation of this law after prior written
notice to the applicant and the holder of the permit.
A.Â
At the time of submission of an application for a special use permit
for a new wireless telecommunications facility, a nonrefundable application
fee of $5,000 shall be paid to the Village. For small cells and DAS
applications that include a new utility pole, the application fee
shall be $1,000 per node. For small cells and DAS applications that
propose to utilize an existing utility pole, the application fee shall
be $500 per application. If the application is for a building permit
for co-locating on or major modification of an existing wireless telecommunications
facility or other structure, the nonrefundable fee shall be $3,500.
If the application is for a building permit (e.g., for co-locating
on an existing telecommunications tower or structure where no substantial
changes are proposed, or for a minor modification), the application
fee shall be $2,000. Joint applications for co-location on one site
shall be treated as separate applications. The application fee may
be changed by the Village from time to time by resolution of the Board
of Trustees.
B.Â
The application fee for recertification of a special use permit for a wireless telecommunications facility shall be $1,500 unless there has been a major or minor modification of the wireless telecommunications facility since the date of the issuance of the original special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply. Any submissions or information provided of any kind shall simultaneously be provided to the Village's consultant.
The applicant and the property owner of record of any wireless
telecommunications facilities 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, in an amount of
$100,000 for new tower structures greater than 50 feet in height and
with such sureties as are deemed acceptable by the Village to assure
the faithful performance of the terms and conditions of this chapter,
and conditions of any permit issued pursuant to this chapter. For
co-locations that do not increase the height of the structure attached
to, the bond or other security shall be $25,000. The full amount of
the bond or security shall remain in full force and effect throughout
the term of the permit, recertification 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 permit.
No bond shall be required for small cells located on an existing utility
pole in a public ROW.
A.Â
In order to verify that the holder of a special use permit or building
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, mitigation features
such as stealth tree branching or other stealthing, small cell/DAS
nodes, and buildings or other accessory structures constructed or
located on the permitted site.
B.Â
The holder of a wireless telecommunications facility permit shall
at all times keep on file with the Building Department the name, address,
and telephone number of the owner and operator of the permitted facility
to arrange for Village inspections and required maintenance and reporting.
The holder of the special use permit or building permit for
certain wireless telecommunications facilities shall, annually, certify
to the Village that NIER levels at the site are within the threshold
levels then currently adopted by the FCC and that the tower, utility
pole, or other structure and all mounts for antennas and ancillary
equipment are adequate for code compliance and public safety. Said
certification shall include a report prepared in accordance with the
FCC Office of Engineering and Technology Bulletin 65, as amended.
The Village may hire a consultant of its choosing to analyze and verify
such certification; the cost of such consultant shall be reimbursed
by the applicant or permit holder. The certifying engineer shall file
a copy of its license with the Village.
A.Â
The holder of a permit for a wireless telecommunications facility
shall secure and at all times maintain public liability insurance
for personal injuries, death and property damage, and umbrella insurance
coverage, for the duration of the special use permit in amounts as
set forth below:
(1)Â
Commercial general liability covering personal injuries, death and
property damage: $2,000,000 per occurrence, $5,000,000 aggregate;
extensions: waiver of subrogation in favor of the Village.
(2)Â
Automobile coverage: $1,000,000 per occurrence, $2,000,000 aggregate.
(3)Â
Workers' compensation and disability: statutory amounts; extensions:
voluntary compensation: all states coverage, employer's liability:
unlimited.
(4)Â
Umbrella liability: umbrella form: $5,000,000.
B.Â
The commercial general liability, automobile and umbrella insurance
policies shall specifically include the Village and all elected and
appointed officials, and its employees, volunteers, committee members,
attorneys, agents and consultants as additional named insureds by
endorsement to the policy of insurance.
C.Â
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state and with
a Best's rating of at least A.
D.Â
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the Village with at least 30 days'
prior written notice in advance of the cancellation of the insurance.
E.Â
Renewal or replacement policies or certificates shall be delivered
to the Village at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
F.Â
Before construction of a permitted wireless telecommunications facility
is initiated, but in no case later than 15 days after the grant of
the special use permit or building permit, the holder of the permit
shall deliver to the Village a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.Â
Any application for wireless telecommunications facilities that is
proposed for property located within the Village pursuant to this
chapter shall contain a provision with respect to indemnification.
Such provision shall require the applicant, to the extent permitted
by the law, to at all times defend, indemnify, protect, save, and
hold harmless, and exempt the Village, and its officers, boards, employees,
committee members, attorneys, agents, and consultants, from any and
all penalties, damages, costs, or charges arising out of any and all
claims, suits, demands, causes of action, or award of damages, whether
compensatory or punitive, or expenses arising therefrom, either at
law or in equity, which might arise out of, or are caused by, the
placement, construction, erection, modification, location, products
performance, use, operation, maintenance, repair, installation, replacement,
removal, or restoration of said facility. With respect to the penalties,
damages or charges referenced herein, reasonable attorneys' fees,
consultants' fees, and expert witness fees are included in those
costs that are recoverable by the Village. Said indemnity shall be
signed by a duly authorized corporate officer or representative of
the applicant.
A.Â
In the event of a violation of this chapter or any permit issued
pursuant to this chapter, the Village may impose and collect, from
the property owner and/or holder of a permit for wireless telecommunications
facilities, the fines or penalties as set forth below. A violation
of this chapter is hereby declared to be an offense, punishable by
a fine not exceeding $350 per day, per occurrence, or imprisonment
for a period not to exceed six months, or both, for conviction of
a first offense; for conviction of a second offense, both of which
were committed within a period of five years, punishable by a fine
not less than $350 nor more than $700 per day or imprisonment for
a period not to exceed six months, or both; and, upon conviction for
a third or subsequent offense, all of which were committed within
a period of five years, punishable by a fine not less than $700 per
day nor more than $1,000 per day or imprisonment for a period not
to exceed six months, or both. However, for the purpose of conferring
jurisdiction upon courts and judicial officers generally, violations
of this chapter or of such ordinance or regulation shall be deemed
misdemeanors, and for such purpose only, all provisions of law relating
to misdemeanors shall apply to such violations. Each week's continued
violation shall constitute a separate additional violation.
B.Â
Notwithstanding anything in this chapter to the contrary, the holder
of a permit for a wireless telecommunications facility may not use
the payment of fines, liquidated damages or other penalties to evade
or avoid compliance with this chapter or any section of this chapter.
An attempt to do so shall subject the holder of the permit to termination
and revocation of the permit. The Village may also seek injunctive
relief to prevent the continued violation of this chapter, without
limiting other remedies available to the Village.
A.Â
If wireless telecommunications facilities are 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 permit, then the Village Board or Building Inspector shall
notify the holder of the permit in writing of such violation. Such
notice shall specify the nature of the violation or noncompliance
and that the violations must be corrected within seven days of the
date of the postmark of the notice, or of the date of personal service
of the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this chapter,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Village may,
at its sole discretion, order the violation remedied within 24 hours.
B.Â
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facility into compliance, then the Village may revoke such permit for such wireless telecommunications facility, and shall notify the holder of the permit within 48 hours of such action.
A.Â
Under the following circumstances, the Village Board or Building
Inspector may determine that the health, safety, and welfare interests
of the Village warrant and require the repair or removal of wireless
telecommunications facilities.
(1)Â
Wireless telecommunications facilities with a permit have been abandoned
(i.e., not used as wireless telecommunications facilities) for a period
exceeding 90 consecutive days or a total of 180 days in any 365-day
period, except for periods caused by force majeure or acts of God,
in which case repair or removal shall commence within 90 days.
(2)Â
Permitted wireless telecommunications facilities fall into such a
state of disrepair that they create a health or safety hazard or visual
blight or that the mitigation measures of the permit are no longer
effective or functioning as intended.
(3)Â
Wireless telecommunications facilities have been located, constructed,
or modified without first obtaining, or in a manner not authorized
by, the required special use permit, building permit, or any other
necessary authorization.
B.Â
If the Village Board or Building Inspector makes such a determination as noted in Subsection A of this section, then the Village Board or Building Inspector shall notify the holder of the special use permit for the wireless telecommunications facility within 48 hours that said wireless telecommunications facility is to be repaired or removed.
C.Â
The holder of the permit, or its successors or assigns, shall repair
or dismantle and remove such wireless telecommunications facility,
and all associated structures and facilities, from the site and restore
the site to as close to its original condition as is possible within
90 days of receipt of written notice from the Village Board or Building
Inspector. However, if the owner of the property upon which the wireless
telecommunications facility is located wishes to retain any access
roadway to the wireless telecommunications facility, the owner may
do so with the approval of the Board. The property owner, as a condition
of the special use permit, shall permit access to the property by
the Village or its representatives for the purpose of implementing
this section.
D.Â
If a wireless telecommunications facility is not repaired or removed or substantial progress has not been made to remove the wireless telecommunications facility within 90 days after the permit holder has received notice, then the Village or Building Inspector may order officials or representatives of the Village to remove the wireless telecommunications facility at the sole expense of the owner and/or permit holder. The Village may utilize the proceeds of the bond provided in § 85-22 for removal or maintenance of the structures authorized by this chapter.
E.Â
If the Village repairs, removes, or causes to be removed a wireless
telecommunications facility, and the owner of the wireless telecommunications
facility does not claim and remove it from the site to a lawful location
within 10 days, then the Village may take steps to declare the wireless
telecommunications facility abandoned, and sell it and its components.
F.Â
Notwithstanding anything in this section to the contrary, the Village
Board or Building Inspector may approve a temporary use permit/agreement
for the wireless telecommunications facility, for no more than 90
days, during which time a suitable plan for repair, removal, conversion,
or relocation of the affected wireless telecommunications facility
shall be developed by the holder of the permit, subject to the approval
of the Village Board or Building Inspector, and an agreement to such
plan shall be executed by the holder of the permit and the Village.
If such a plan is not developed, approved and executed within said
ninety-day time period, then the Village may take possession of, and
dispose of, the affected wireless telecommunications facility in the
manner provided in this section. The Village may approve an interim
temporary use agreement/permit, such as to enable the sale of the
wireless telecommunications facility.
A.Â
To the extent that the holder of a permit for a wireless telecommunications
facility has not received relief, or is otherwise exempt, from appropriate
state and/or federal agency rules or regulations, then the holder
of such permit shall adhere to, and comply with, all applicable rules,
regulations, standards, and provisions of any state or federal agency,
including, but not limited to, the FAA and the FCC. Specifically included
in this requirement are any rules and regulations regarding height,
lighting, security, electrical and RF emission standards.
B.Â
To the extent that applicable rules, regulations, standards, and
provisions of any state or federal agency, including, but not limited
to, the FAA and the FCC, and specifically including any rules and
regulations regarding height, lighting, security and RF emissions
standards, are changed and/or are modified during the duration of
a permit for a wireless telecommunications facility, then the holder
of such permit shall conform the permitted wireless telecommunications
facility to the applicable changed and/or modified rule, regulation,
standard, or provision within 24 months of the effective date of the
applicable changed and/or modified rule, regulation, standard, or
provision, or sooner as may be required by the issuing entity.
Where this chapter differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by state or federal law, this chapter shall apply.
The Board may waive or modify any of the provisions and requirements
contained herein upon application of the applicant to the Board showing
just cause for such waiver or modification in order to further the
purposes and intent of this chapter and compliance with the Telecommunications
Act of 1996.
A.Â
If any word, phrase, sentence, part, section, subsection, or other
portion of this chapter or any application thereof to any person or
circumstance is held to be void, unconstitutional or invalid by a
court of competent jurisdiction, then such word, phrase, sentence,
part, section, subsection, or other portion, or the proscribed application
thereof, shall be severable, and the remaining provisions of this
chapter, and all applications thereof, not having been declared void,
unconstitutional or invalid, shall remain in full force and effect.
B.Â
Any special use permit or building permit issued under this chapter
shall be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect, by
a court of competent jurisdiction, or is overturned by a court of
competent jurisdiction, the permit shall be void in total, upon determination
by the Village Board or Building Inspector.
